NAVAL OFFICERS SERVING AS BUREAU CHIEFS-RANK AND EMOLUMENTS. A naval officer who has served as chief of bureau in the Navy and has returned to general duty before the expiration of 30 years' service, is not entitled, upon becoming eligible for retirement, to the same rank and emoluments to which he would have been entitled under the provisions of the naval appropriation act of June 24, 1910 (36 Stat. 607,608), if he had become eligible for retirement while still acting as chief of bureau. The words "Any officer of the Navy who is now serving or shall hereafter serve as chief of a bureau in the Navy Department, and shall subsequently be retired," found in the third paragraph of the act of May 13, 1908 (35 Stat. 128), refer to the case of retirement during service as chief of bureau. DEPARTMENT OF JUSTICE, July 9, 1910. SIR: I reply to a communication from Commander Philip Andrews dated on board the Dolphin at Gloucester, Mass., July 4, 1910, in which he says that he writes by your direction and that you desire an informal expression of opinion on the question whether an officer who has served as a chief of bureau in the Navy but resigns or is removed from that position "before the expiration of a total of 30 years' service" may be retired when, after an interval of return from the chiefship of a bureau to general duty he becomes eligible for retirement, with the same rank and emoluments as if he had been retired or had become eligible for retirement while still acting as chief of bureau. This question arises under the third paragraph of the act approved May 13, 1908 (35 Stat. 127, 128), and the paragraph of the act of June 24, 1910, entitled "An act making appropriations for the naval service for the fiscal year ending June thirtieth, nineteen hundred and eleven, and for other purposes," which reads as follows: "The pay and allowances of chiefs of bureaus of the Navy Department shall be the highest shore-duty pay and allowances of the rear admiral of the lower nine; and all officers of the navy who are now serving or shall hereafter serve as chief of bureau in the Navy Department and are eligible for retirement after 30 years' service, shall have, while on the active list, the rank, title, and emoluments of a NOTE. This opinion is referred to on p. 529, and therefore, although rendered informally is included herein. chief of bureau, in the same manner as is already provided by statute law for such officers upon retirement by reason of age or length of service, and such officers, after 30 years' service, shall be entitled to and shall receive new commissions in accordance with the rank and title hereby conferred." (36 Stat. 607–608.) It will make the matter plainer to quote at the outset these pertinent provisions of the act of May 13, 1908: “Provided further, That the pay and allowances of chiefs of bureaus in the Navy Department shall be the highest pay of the grade to which they belong, and not below that of rear admiral of the lower nine. * * * When an officer of the Navy has been thirty years in the service, he may, upon his own application, in the discretion of the President, be retired from active service and placed upon the retired list with three-fourths of the highest pay of his grade: And provided further, That any officer of the Navy who is now serving or shall hereafter serve as chief of a bureau in the Navy Department, and shall subsequently be retired, shall be retired with the rank, pay and allowances authorized by law for the retirement of such bureau chief." (35 Stat. 128.) It is obvious under the language last quoted that an officer actually retired from active service while still acting as chief of bureau became entitled, before the new enactment of 1910, to pay during retirement of not less than threefourths of the pay of a "rear admiral of the lower nine "; but this privilege did not extend to officers who became "eligible for retirement," as the new statute of 1910 says, without being actually retired; and the purpose of the new enactment of 1910 quite clearly was to extend to chiefs of bureau becoming eligible for retirement the same privileges as under the prior law they could claim upon actual retirement. This extension of the old rule to chiefs of bureaus becoming eligible for retirement, without actual retirement, affords an adequate motive for and explanation of the new legislation; and it serves at once to show that the enactment of 1910 had a rational and important purpose without its being deemed to have enlarged the prior rule in other important features. I come, then, to your exact inquiry, and I think that it must be answered in the negative. Several things so indicate. In the first place, it is clear that under the act of 1908 an officer who ceased to be a chief of bureau and returned to general service before actual retirement could receive hereafter for his general service only the proper pay of his regular rank, without increase on account of his having formerly been chief of bureau. There is nothing in the legislation before 1910 to give any officer returning to active general service larger pay thereafter because he had previously been a chief of bureau. This being so, how can it be considered that under the statute as it stood before 1910 such officer returning to active general service from a previous headship of a bureau should receive larger pay because of that former service as chief of bureau upon his being actually retired? It is plainly unreasonable to think that the previous service as chief of bureau should enlarge pay in retirement when it would not enlarge pay in active service immediately preceding the retirement. I therefore consider it clear that the words of the old statute underlined in the following clause “any officer of the Navy who is now serving or shall hereafter serve as chief of bureau in the Navy Department, and shall subsequently be retired”refer to the case of retirement during service as chief of bureau. In the next place, as I have already said, there is nothing in the act of 1910 to alter this rule. It is a rule so reasonable that pretty clear language would be needed for its alteration; especially as it may be taken as a proper general rule that grants of exceptional privileges in retirement be required to be more than indefinite and dubious. The very language of the act of 1910, however, corroborates my interpretation of the former law; for the language now is concerning "all officers of the Navy who are now serving or shall hereafter serve as chief of bureau in the Navy Department, and are eligible for retirement," etc. The wording is no longer concerning officers "subsequently" retired or eligible for retirement, and it is no longer in the future tense at all. On the contrary, the words "are eligible for retirement" must be taken to refer to a present eligibility for retirement, occurring while the service as chief of bureau continues. In the third place, the argument founded upon an interval of ordinary pay in case of active service between the chiefship of a bureau and the arrival of actual retirement is equally applicable to the statute of 1910. It can not be believed that it was the intention of the new legislation to give an officer who once had been chief of bureau higher pay upon his becoming eligible for retirement than the same officer could have while in active general service between his service as chief of bureau and his becoming eligible for retirement. Finally, I am informed that officers of relatively short service and relatively low rank are competent for service as chief of bureau; and a construction of the acts of 1908 and 1910 otherwise than as I now interpret them would advance all these officers upon their actual retirement or their becoming eligible for retirement-however long after they had ceased to serve as chief of bureau-to a pay in retirement based upon the pay of a rear admiral of the lower nine. Such a result certainly can not be accepted without clear manifestation of a congressional purpose so to enact. Respectfully, LLOYD W. BOWERS, The SECRETARY OF THE NAVY. EIGHT-HOUR LAW-CONTRACT FOR FURNISHING CAISSONS FOR THE GOVERNMENT-ATTORNEY GENERAL. The Attorney General is not authorized to express an official opinion as to whether the provisions of the eight-hour law of August 1, 1892 (27 Stat. 340), will apply to the construction of caissons for the United States, where the information is desired for the guidance of certain prospective bidders, as the question is not one which the Secretary of the Navy is called upon to decide in the administration of his Department. DEPARTMENT OF JUSTICE, December 14, 1910. SIR: I have the honor to acknowledge the receipt of your letter of this date, stating that the Department of the Navy had invited bids for the furnishing of three steel caissons. You say: "The specifications for these caissons, which will form a part of such contract or contracts as may be let for the furnishing of them, contemplate that they shall be built by the contractor and delivered to the Government complete and in working order, at the station or yards for which they are respectively designed; that periodical payments shall be made on account of the contract or contracts as the work progresses, but that the caissons shall be accepted by the Government only after they shall have been delivered and satisfactorily passed the specified tests." You then inform me that "inquiry has been made by prospective bidders as to whether in the construction of these caissons the provisions of the eight-hour law of August 1, 1892 (27 Stat. 340) will apply," and you request my opinion upon that question, if I deem it appropriate to give it. A similar case was presented to one of my predecessors, Mr. Attorney General Miller. A contract had been made by the Government with the Vermont Marble Company to furnish the material and partially erect a post-office building at Worcester, Mass. The company having requested the Secretary of the Treasury to advise them whether the laborers and mechanics engaged at the quarries, mills, and shops of the company, in getting out the materials to be supplied by them come within the application of the eight-hour law of August, 1892, the Secretary submitted the matter to the Attorney General. Mr. Miller declined to give the opinion asked for. He said: "It will be observed that the duty prescribed in the first section (of the act), and the penalty imposed in the second, is confined to those persons, whether officers or agents of the Government or of the District, or contractors or subcontractors, whose duty it is to employ, direct, or control the services of such laborers or mechanics. The Secretary of the Treasury has no such relations to any of the workingmen to be employed on this job, whether at the quarries or at the building itself. The duty to employ, direct, or control such laborers or mechanics, and the penalty for their wrongful employment, is with the contractor, and not with the Government or any of its officers or agents. |