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ISTHMIAN CANAL COMMISSION-AWARD OF CONTRACT
FOR FURNISHING OILS.
A contract for furnishing oils to the Isthmian Canal Commission
may be awarded under War Department circular of December 11, 1909, to a bidder who, at the time the contract is entered into, satisfactorily shows that he has acquired these products bona fide and in his own right, either in immediate possession or for future delivery. The contract is not vitiated if these supplies are to be obtained from á prohibited company, provided that company has no interest whatever in the sale to the Government.
DEPARTMENT OF JUSTICE,
March 23, 1910. Sır: Replying to yours of 22d instant, in which you ask for the proper interpretation of a sentence quoted from my previous communication, dated March 17, 1910, ante, 218, I beg to say that the position of Messrs. Motley, Green & Co., set forth in your letter of March 10, 1910, which is quoted in my previous communication, is:
“ That they did not own the oil which they proposed furnishing at the time they made their bid, and that they entered into a contract with the Galena Signal Oil Company by virtue of which they accept deliveries to them from that company from time to time to fill the contract with the Isthmian Canal Commission in case the award shall be made to them.”
In their letter of March 5, which is also quoted in my previous communication, they say:
“ We have a valid contract with the Galena Signal Oil Company for the supply of these oils, and are in a position to call upon them for the same at any time. They have no interest in our contract in any way whatever.”
It was upon this statement of facts that I advised:
" That if, in your opinion, Messrs, Motley, Green & Co. have acquired, bona fide and in their own right, the supplies proposed to be contracted for, and are not middlemen or agents for the Galena Signal Oil Company, or any of the other corporations enumerated in your circular of December 11, 1909, then there is no reason why you should not award the contract to them."
Perhaps, to have been absolutely accurate, I should have said “jf, in your opinion, Messrs. Motley, Green & Co. shall have acquired bona fide, etc.,” but I was predicating my observations upon their statement that they had a valid contract. Speaking generally, what I meant to say was that if at the time Messrs. Motley, Green & Co. enter into a contract with the Government they shall satisfy you that they have acquired, bona fide and in their own right, either in immediate possession or for future delivery, the supplies which they agree to sell and deliver to the Government, then the fact that they are to obtain those supplies from one of the prohibited companies, that company, however, having no interest whatever in the sale by them to the Government, you would not be prevented from awarding the contract. Respectfully,
GEORGE W. WICKERSHAM. The SECRETARY OF WAR.
PUBLIC PRINTER-ABOLITION OF BRANCH PRINTING
The Public Printer can not, of his own motion, abolish any branch
printing office, nor can he, with the consent of the Joint Committee on Printing, abolish any branch printing offices other than the excepted offices enumerated in section 31 of the act of Jan. 12, 1895 (28 Stat. 601).
DEPARTMENT OF JUSTICE,
March 28, 1.910. Sir: I am in receipt of a letter addressed to you by the Public Printer, under date of March 23, 1910, in which he requests my opinion as to whether or not the Public Printer is authorized by law to abolish, of his own motion, any of the branch printing offices under his control, and what offices may be abolished by the Public Printer with the approval of the Joint Committee on Printing.
The powers and duties of the Public Printer are prescribed by the general printing act of January 12, 1895, entitled "An act providing for the public printing and binding and the distribution of public documents." (28 Stat. 601.)
NOTE.-Opinion of March 23, 1910, to the President, may appear in a later volume.
Section 17 of that act provides for the appointment of a Public Printer, and his duties are prescribed in different sections of the act; in fact, almost every section contains some provision which imposes upon the Public Printer a duty or confers upon him a power. Section 31 is the only provision of the statute dealing with printing offices and branches. It is in the following language:
"All printing offices in the departments now in operation, or hereafter put in operation, by law, shall be considered a part of the Government Printing Office, and shall be under the control of the Public Printer, who shall furnish all presses, types, imposing stones, and necessary machinery and material for said offices from the general supplies of the Government Printing Office; and all paper and material of every kind used in the said offices for departmental work, except letter and note paper and envelopes, shall be supplied by the Public Printer; and all persons employed in said printing offices and binderies shall be appointed by the Public Printer, and be carried on his pay roll the same as employees in the main office, and shall be responsible to him: Provided, That the terms of this act shall not apply to the office in the Weather Bureau, or, to so much of the printing as is necessary to expedite the work of the Record and Pension Division of the War Department nor to the printing office now in operation in the Census Office; but the Public Printer, with the approval of the Joint Committee on Printing, may abolish any of these excepted offices whenever in their judgment the economy of the public service would be thereby advanced.
“All work done in the said offices shall be ordered on blanks prepared for that purpose by the Public Printer, which shall be numbered consecutively, and must be signed by some one designated by the head of the department for which the work is to be done, who shall be held responsible for all work thus ordered, and who shall quarterly report to the head of the department a classified statement of the work done and the cost thereof, which report shall be transmitted to the Public Printer in time for his annual report to Congress. The Public Printer shall show in detail, in his annual report, the cost of operating each departmental office."
The only power conferred in this section, with respect to the abolition of any oflice, is that found in the proviso under which the Public Printer “with the approval of the Joint Committee on Printing may abolish any of” the three offices excepted from the main provisions of the section, viz: (1) The office in the Weather Bureau; (2) the printing office necessary to expedite the work of the Record and Pension Division of the War Department; (3) the printing office in the Census Office-abolished by operation of the act of July 1, 1902.
No power is conferred upon the Public Printer, of his own motion, to abolish any branch printing office; nor, with the consent of the Joint Committee on Printing, to abolish any except the above-mentioned excepted offices. On well-settled principles, the specific expression of power in the given cases implies absence of the power in any but the excepted cases, and, in general, the act vests the printing offices of the Government "under the control of the Public Printer," obviously for the purposes of operation and not suppression. Respectfully,
GEORGE W. WICKERSHAM.
CORPORATION TAX-SNOW ASSOCIATES, DEPARTMENT
STORE TRUST, ETC.
Companies known as the Snow Associates, the Department-Store Trust,
the Real Estate Trust, etc., organized under and by an agreement and declaration of trust for the purpose of improving and holding real estate, the title to which is vested exclusively in trustees who are removable by vote of the stockholders, and the stock being transferable, which companies possess all of the essential elements of a common-law joint stock company, are "joint stock companies or associations organized for profit and having a capital stock represented by shares,'' organized under the laws of a State, within the intent of section 38 of the act of August 5, 1909 (36 Stat. 112) and are ame
nable to the tax imposed thereby. By the expression “laws of a State," as used in statutes, reference may
be had to the common law as well as to the statutory law of such State.
DEPARTMENT OF JUSTICE,
March 31, 1910. Sir: In your communication of February 4, 1910, you ask my opinion with reference to whether certain business concerns which are known as the Snow Associates, the Department Store Trust, the Farlow Real Estate Trust, and the Bromfield Building Trust fall within the provisions of section 38 of the act of August 5, 1909 (36 Stat. 112), which provides for an excise tax with respect to the carrying on or doing business by corporations, joint stock companies, and associations; and in reply thereto I have the honor to say:
All of these companies have the same general plan of organization, and the Snow Associates will be taken as an example.
This company was organized under and by an agreement and declaration of trust which contained the following provisions: The purpose of the trust was the improving and holding of four parcels of real estate which were particularly described, and the title thereto was vested in three persons, as trustees, who were to perform their duties under the powers granted by the declaration of trust. The title to the property was vested exclusively in the trustees, so that the shareholders are without interest therein other than that conferred by their shares issued under the terms of the trust, and have no right to call for partition, accounting, or division of the property, rights, or interests. The capital is $1,224,000, divided into shares of $100 each. The trustees issued certificates to the shareholders for the number of shares to which each was entitled. In addition to the shaies, amounting to $1,224,000, the trustees retained in their hands shares of the par value of $100,000 for the purpose of raising funds to improve the property and to purchase additional real estate, to pay for mortgages, etc. At meetings of the shareholders each share is entitled to one vote. Shareholders may transfer their shares on surrender of their certificates, upon books to be kept by the trustees, in the manner usual for the transfer of shares of stock of corporations, or in such other manner as the trustees may