human life or the destruction of property.

(34 Stat. 27, 48, 49.)

[Italics indicate clauses not origi

nally contained in the section.]

It is possible that the clause "in excess of that authorized by law" is a limitation on the words "voluntary service" as well as on the words "personal service," and if so, the question you put would not require further discussion, because, of course, services as superintendent of Indian schools or agencies are authorized by law. (R. S. sec. 2071.) Such a construction would be sensible in view of the evident purpose of Congress to prevent the doing of things which it had not authorized to be done. But however this may be, it seems plain that the words "voluntary service" were not intended to be synonymous with " gratuitous service" and were not intended to cover services rendered in an official capacity under regular appointment to an office otherwise permitted by law to be nonsalaried. In their ordinary and normal meaning these words refer to service intruded by a private person as a "volunteer" and not rendered pursuant to any prior contract or obligation, and they were exactly so construed (though not as a part of this statute) in Board of Commissioners v. Richardson (54 Ind. 153, 156). An incidental dictum of Mr. Justice Field in his separate concurring opinion in United States v. San Jacinto Tin Co. (125 U. S. 273, 305) may in some of its language be construed to indicate a view that Congress intended "voluntary service" to be synonymous with " gratuitous service," but his language was explicitly addressed to "the practice of obtaining services from private parties without incurring liabilities for them." It is perfectly evident to me, from examining the whole passage, that he had no intention of intimating that appointments to office without compensation would be unlawful. It would be stretching the language a good deal to extend it so far as to prohibit official services without compensation in those instances in which Congress has not required even a minimum salary for the office.

The context corroborates the view that the ordinary meaning of " voluntary services. voluntary services" was intended. The very

next words "or employ personal service in excess of that authorized by law" deal with contractual services, thus making a balance between "acceptance" of "voluntary service" (i. e., the cases where there is no prior contract) and employment " of "personal service" (i. e., the cases where there is such prior contract, though unauthorized by law).

66

Taking the section as a whole, it is also perfectly evident from its legislative history that the purpose was to prevent the Departments from incurring financial obligations over and above those authorized in advance by Congress. In its original form it did not contain the words I have italicized in the text as quoted above, but merely prohibited—

(1) Any present expenditures in excess of appropriations.

(2) Any contract for future payments in excess of the appropriations.

Experience convinced Congress that these provisions did not suffice to accomplish the full result desired, because deficiencies continued to occur and claims for extra services or for unauthorized services continued to be presented in such a way as to put Congress under a moral compulsion to meet them. Accordingly, Congress added to Revised Statutes, section 3679, the words italicized above, which involved the prohibition of "obligations" as well as "contracts," and prohibited, in addition to the above matters (1) and, (2) theretofore specified by the section, the following further matters:

(3) Acceptance of voluntary service (i. e., service which, though not performed under the prohibited contract or obligation, still carried with it a quasi-contractual or moral right to compensation and—

(4) Employment of personal service in excess of that authorized by law (i. e., especially additional work imposed upon clerks outside regular hours).

That this was the purpose of the amendment was made plain by the following statement to the House by the chairman of the committee in charge of the bill:

"I call attention to this particular limitation because we seek by it to prevent deficiencies in the future. J is

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. *99 (39 Cong. Rec., 58th Cong., 3d

sess., pt. 4, p. 3687.)

*

we

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: