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“Under the circumstances, it is clear that the question propounded by the marble company to the Secretary of the Treasury is one which the latter is not called upon to answer, and hence it is not, within the language of section 356 of the Revised Statutes, 'a question of law arising in the administration of his department. It is therefore not a question upon which I am authorized to give an opinion.”
Mr. Attorney General Miller then adds:
“It is, of course, quite needless that a citation shall be made of the very numerous opinions of my predecessors, as well as of myself, upon this point. The rule is as sound in reason as it is well supported by authority.” (20 Op. 500, 501.)
In the “General provisions” accompanying specifications for contracts, and which are made part of the specifications for those contracts, “special attention is called to the provisions of the United States laws relating to hours of labor upon public works."
No other provision concerning the eight-hour law is in the specifications for the contracts submitted to me. By statute this must be embraced in some other contracts. By the act of June 24, 1910, second session Sixty-first Congress (36 Stat. 628), providing for the building of vessels of war, it is enacted:
"And the contract for the construction of said vessels shall contain a provision requiring said vessels to be built in accordance with the provisions of 'An act relating to the limitation of the hours of daily service of laborers and mechanics employed upon the public works of the United States and of the District of Columbia,' approved August first, eighteen hundred and ninety-two."
The applicability of the eight-hour law of 1892 to the work done under contracts entered into by the Secretary of the Treasury for the Government is not a matter for his decision. Therefore it is not within the authority of the Attorney General to advise with regard to it.
This rule was considered in other cases by Mr. Attorney General Miller, and citations given to opinions of his predecessors. (See 20 Op. 463; ib. 465.) In the latter case, the Attorney General said:
“As shown in the opinions above referred to, and the citations therein made, it is neither my duty, nor have I a right, to give an official opinion with a view to the guidance of persons who may propose to enter into contract relations with the United States."
Following these precedents, and agreeing with the soundness of the views expressed, I find myself unable to comply with the request contained in your letter. Very respectfully,
GEORGE W. WICKERSHAM. The SECRETARY OF THE NAVY.
COMMON CARRIERS-TRANSPORTATION OF LETTERS AND
PACKETS OUTSIDE THE MAIL.
Where a State, by valid and lawful authority, requires a common car
rier to furnish reports relative to its traffic, the fulfillment of the duty thus imposed constitutes a part of the current business of the carrier, and these reports may be carried outside the mail without payment of postage, consistently with the provisions of Section 184 of the
Criminal Code. The different companies of an association of railroads, which is without
corporate or legal existence, formed for the purpose of weighing all carload shipments moving over the lines of the railroads that are members of the association, should be treated as separate organizations in their relation to the mail service, and their right to send letters without payment of postage is not extended by Section 184 of the C'rimi
nal Code. Congress did not mean to do more than to permit carriers themselves,
and particularly corporate carriers, to carry their own messages,
which necessarily would be limited to their own business. Syntax and grammar must yield to the intention of Congress. Companies which are distinct corporations, but have been merged into
one system of railways, are limited in their right to carry letters outside the mail without payment of postage to the distinct corporations composing the system. Thus, one such company may carry its own letters addressed to another company, to the point of connection and deliver them, and the second company may carry them to any point on its lines, but the latter could not act as an intervening company and carry and deliver letters written by the first company to a third
company although the latter belonged to the same system. By Section 184 of the Criminal Code Congress intended to adopt rather
than set aside the opinion of Attorney-General Harmon. (21 Op. 394.) "Current business” is presumably any business of the carrier when it
comes up in such a way as to call for current communication.
DEPARTMENT OF JUSTICE,
December 20, 1910. I have the honor to reply to your letter of August 1, 1910, supplemented by your letter of August 16, 1910, in which you ask me certain questions on the subject of the right of carriers to transport letters and packets outside the mail.
All your questions involve the construction of section 184 of the Penal Code (act March 4, 1909, 35 Stat. 1124), which is as follows:
“Sec. 184. Whoever, being the owner, driver, conductor, master, or other person having charge of any stagecoach, railway car, steamboat, or conveyance of any kind which regularly performs trips at stated periods on any post route, or from any city, town, or place to any other city, town, or place between which the mail is regularly carried, and which shall carry, otherwise than in the mail, any letters or packets, except such as relate to some part of the cargo of such steamboat or other vessel, to the current business of the carrier, or to some article carried at the same time by the same stagecoach, railway car, or other vehicle, except as otherwise provided by law, shall be fined not more than fifty dollars."
I. Your first question is as follows:
“The laws of one of the States require the collection, collation, and publishing, by a state bureau, of railroad and express shipments. The officials of that bureau propose to furnish the superintendent of an express company doing business as a common carrier within the State a supply of blank forms for use in reporting the information; the superintendent to distribute the forms to the several local agents of the company throughout the State, who are to fill them out and return the completed forms, through the superintendent, to the state bureau. The question to be determined is whether the return of these completed forms by the express company, through its own agencies, outside of the mails without the payment of postage, is permitted."
I am of opinion that the statute does permit the express company to carry these reports outside the mails without payment of postage for the reason that they "relate to the
current business of the carrier.” When a State, by valid, lawful authority, requires a railroad company to make reports of its traffic, the fulfillment of the duty thus imposed is clearly a part of the “current business of the carrier" within the terms of the statute.
II. Your second question is as follows:
"The W association is an association of railroads having no corporate or distinct legal existence. The object of this association and the manner of conducting its business is that, by agreement of the railroads, a chairman of said association is selected, who, through employees chosen by him, some of whom are station agents of the various roads that are members of the association, weigh all carload shipments moving over the lines of the railroads that are members of the association. It has been the practice of this department to treat these associations as separate organizations in their relations to the mail service and to regard their right to send letters as limited like that of common carriers under the provisions of section 1142. Thus, an employee of the W association, whether joint or otherwise, can write and deliver to a railroad company letters intended for such company's officers or agents, but he can not transmit a letter addressed to another agent of the W association without the payment of postage, even though the railroad company over whose line it is forwarded has an interest in the subject of the correspondence to which it is not a party, because there would be the intervention of such company as a carrier. The question is now presented whether this right is extended by the new exception provided in the Criminal Code.”'
I am of opinion that the question should be answered in the negative, and that the modification of Revised Statutes, section 3985, made by section 184 of the new Penal Code, does not extend the right of free transportation of letters to cover such a case.
It may be that in any given case the letters referred to in your question would "relate to the current business of the carrier," but I am of opinion that even so they would not be excepted by the statute because they are not messages belonging to the carrier concerned.
This is apparent from the legislative history of the act. Section 184 of the Penal Code is adapted from section 3985 of the Revised Statutes without any material change excepting the insertion of the phrase "to the current business of the carrier." Section 3985 of the Revised Statutes was construed by Attorney-General Harmon (21 Op. 394). He held, upon grounds which seem to me to be sound, that it was intended to deal only with transportation of communications between third parties, and to prohibit and make criminal only such transportation with the stated exceptions; and that it did not intend to prohibit or make criminal the transportation of communications, whatever their subject, belonging to the carrier itself. In the particular case of railroads or other corporation carriers his opinion necessarily had the effect of limiting the right of the carrier to the transportation of communications relating to the corporate business, because only such communications would be those of the corporation carrier itself as distinguished from its employees; but a noncorporate carrier could transport anything of his own that he wished.
Pursuant to this opinion your predecessor promulgated certain regulations (secs. 1141 and 1142, Postal Laws and Regulations, edition of 1902) which are set out in your letter, but which it is unnecessary to repeat here.
It appears that when this portion of the Penal Code came up in the Senate certain of the Senators dissented from the opinion of Attorney-General Harmon, and argued that under Revised Statutes, section 3985, it actually was made a crime for a railroad to carry a dispatch from one of its officers to another officer in connection with such an emergency as a wreck. Other Senators upheld the view of Attorney-General Harmon. After a considerable discussion, which appears in the Congressional Record, volume 42, pages 973, 974, 1901 to 1906, 1975, and 1976, it was decided to remove the question from dispute and to adopt formally the interpretation given by AttorneyGeneral Harmon. This was done by inserting the clause above referred to. In the formal report presented to the House by its conference managers this purpose of the new clause "to the current business of the carrier” was explicitly stated as follows: