for loss actually sustained in consequence of the earthquake and fire of 1906, not exceeding $250,000, in the erection of said building.

"A committee was appointed by this Department to consider Mr. Butler's claims under the act, and from their report it appears that at the time the earthquake occurred no work had been done by the contractor except some excavation; that a number of his subcontractors abandoned their contracts on account of the earthquake having increased the cost of their work, but some of his subcontractors adhered to their contracts and performed their work at claimed expenditures aggregating $114,549 in excess of their contract prices with Mr. Butler made before the earthquake.

"The committee has reported the loss upon the items of work under subcontracts at $26,465.24, but that Mr. Butler in his claim showed that these items of work were performed under a verbal understanding with the subcontractors that they would only consider him in their debt if the Government would reimburse him for the losses he was facing and that he does not appear to have paid them any more than the subcontract price for said items. (Pp. 8, 9, 10, and 11 of the committee's report.)

"Hence, the question arises upon which your opinion is requested, whether the amount $26,465.24 reported by the committee (or such amount as I may finally determine upon), as the loss on the items of work performed by the subcontractors under the above understanding with Mr. Butler, are losses sustained by Mr. Butler within the meaning of the act of 1908, supra, and may be paid to him; also if the opinion on the above be in the affirmative, whether the said subcontractors should be required to file their consent to payment to Mr. Butler of the amounts allowed on said items."

The portion of the act of 1908 requiring consideration reads as follows:

"San Francisco, California, customhouse: The Secretary of the Treasury is authorized upon the completion of the customhouse in the city of San Francisco, California, to pay to Thomas Butler, the contractor for the construction

of said building, in addition to the contract price therefor, such sum as may be equitable and just to reimburse said contractor for any loss actually sustained in consequence of the earthquake and great fire of April, nineteen hundred and six, not exceeding the sum of two hundred and fifty thousand dollars: Provided, That the amount allowed said Thomas Butler shall not be sufficient to enable him to make any profit out of the making and execution of said contract."

This item appears to have been incorporated into the sundry civil bill by a Senate amendment, which was modified in conference (Cong. Rec. vol. 42, pp. 6228 and 6568), but neither the Senate committee report nor the debates on the bill throw any light upon its scope.

I find that in reporting upon this item to the chairman of the Committee on Public Buildings and Grounds of the Senate, prior to its inclusion in the sundry civil bill, you stated, under date of February 13, 1908:

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*** The Department is aware that the earthquake and conflagration following the same produced abnormal conditions in the building trades, resulting in a great increase in the cost of labor and materials in and about San Francisco, and the fulfillment of the contract of Mr. Butler has become more difficult and burdensome on that account.

"While the contractor has no legal claim for damages against the United States because of this increase in the cost of labor and materials, it is also true that he was not responsible in any way for those conditions and could not have foreseen or guarded against them, and that the entire burden and loss falls upon him. the contractor has not yet made all his subcontracts, and does not know at this time what the completion of the contract will actually cost him."

* * *

The language employed by Congress in the appropriation act under consideration, together with the available facts, negatives the idea that in authorizing you to pay Mr. Butler, the contractor, such sum as may be equitable and just "for any loss actually sustained in consequence of the earthquake and great fire" of 1906, Congress intended to

confer upon you power to make allowance to subcontractors for their individual losses, due to these causes. To hold that you have such authority would require an interpolation in the statute of the words 66 or any subcontractor," or their equivalent. This could not be done without assuming legislative functions

It is equally clear that the losses suffered by the subcontractors with whom Mr. Butler entered into agreements prior to the earthquake and fire, which losses, your committee states, Mr. Butler agreed to compensate them for. but only in the event he was reimbursed by the Government, can not properly be included in his claim, for he has not paid them, and therefore can not be said to have suffered in consequence thereof.

I am of opinion, however, that if Mr. Butler, now that Congress has provided for his reimbursement for the losses sustained by him, should, in pursuance of his verbal understanding with these subcontractors, pay them such amount as you may determine is properly attributable to the earthquake and great fire at San Francisco, he would be entitled to be reimbursed for that amount out of the appropriation in question, as the same would then be a loss actually sustained by him in consequence of the earthquake and fire.

Respectfully,

GEORGE W. WICKERSHAM.

The SECRETARY OF THE TREASURY.

EIGHT-HOUR LAW-CONTRACTS FOR THE PURCHASE OF

LOCOMOTIVES.

Contracts for the purchase of locomotives made according to standard designs and assembled, as ordered, of parts kept in stock are excepted from the operation of the eight-hour law of June 19, 1912 (37 Stat. 137).

DEPARTMENT OF JUSTICE,
February 4, 1913.

SIR: I have the honor to acknowledge the receipt of your letter of the 27th ultimo, in which you request an opinion as to whether the act of June 19, 1912 (37 Stat. 137), regulating the hours of labor on Government work, is

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applicable to contracts for a locomotive for the use of the Government Hospital for the Insane.

You inclose a letter from the H. K. Porter Co., of Pittsburgh, Pa., one of the prospective bidders, in which it is stated that the process of manufacture of the said locomotives is, not to make contracts with customers, and thereupon make the various parts of the locomotive, but to make a large quantity of duplicate parts for standard designs, keep them on hand in stock ready for use, and assemble the parts when the locomotive is ordered. The locomotive you propose to order is of such a standard design, as illustrated by a photograph accompanying the letter of the H. K. Porter Co., and is sold as of that particular design.

According to the well-settled rule of this Department, I can not undertake to pass upon questions of fact. Assuming that locomotives are, in general, sold according to standard designs, and are assembled, as ordered, of parts kept in stock, as stated in the letter of H. K. Potter Co., I am of the opinion that they do not fall within the provisions of section 1 of the act of June 19, 1912, but are excepted therefrom by the provisions of section 2 of said act, even when they are made of a peculiar design, to conform to particular specifications.

These locomotives do not appear to differ in this respect from automobiles, which are sold according to different designs, and which may or may not be actually set up in the shop at any particular moment. The same is true of many articles of furniture. The main point is that such articles are not sui generis, but are standard articles, offered in the same form to the public generally. They belong, therefore, to the class which it was the intent of Congress to except from the operation of the act of June 19, 1912.

The general principles governing the interpretation of this statute are stated in my opinion to the President, of January 21, 1913, relating to supplies for the Government Printing Office, a copy of which is inclosed herewith. It may be of assistance to you in resolving questions of the character here discussed.

Respectfully,

GEORGE W. WICKERSHAM.

The SECRETARY OF THE INTERIOR.

EMPLOYMENT OF RETIRED ARMY OFFICER AS SUPERIN TENDENT OF INDIAN SCHOOL.

A retired Army officer, even though receiving upward of $2,500 per annum, may be employed as superintendent of an Indian school or agency, where no additional compensation is allowed, without contravening the provision of the act of February 27, 1906 (34 Stat. 48), which prohibits the Government from accepting voluntary service.

The words "voluntary service," as employed in the above-mentioned act, were not intended to cover services rendered in an official capacity under regular appointment to an office otherwise permitted by law to be nonsalaried.

DEPARTMENT OF JUSTICE,

February 7, 1913.

SIR: I have the honor to reply to your letter of September 26, 1912, in which you ask my opinion on the following question:

"Whether a retired Army officer, receiving upwards of $2,500 per annum, could be employed as superintendent of an Indian school or agency, without additional compensation, without contravening the provisions of the act of February 27, 1906 (34 Stat. 48)."

I am of opinion that the employment suggested would not contravene the provisions of the act referred to.

The act, so far as material, provides as follows:

"Sec. 3. That section thirty-six hundred and seventynine of the Revised Statutes of the United States, as amended by section four of the deficiency appropriation act approved March third, nineteen hundred and five, is hereby further amended to read as follows:

"Sec. 3679. No Executive Department or other Government establishment of the United States shall expend, in any one fiscal year, any sum in excess of appropriations. Inade 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