"directly or indirectly interested in the pecuniary profits" within the meaning of the statute. So too, the degree of relationship of the officer to the procurement process would be such as to constitute "the transaction of business with such corporation" as used in the statute. It was the obvious purpose of the statute to prevent an officer of the United States from transacting business with a corporation in such a way that his action might result in direct or indirect personal pecuniary benefit to the officer. (See 14 Op. A. G. 482.)

There is also a question whether such employment would not violate section 66 of title 5, U. S. C. That section reads:

"No Government official or employee shall receive any salary in connection with his services as such an official or employee from any source other than the Government of the United States, except as may be contributed out of the treasury of any State, county, or municipality, and no person, association, or corporation shall make any contribution to, or in any way supplement the salary of, any Government. official or employee for the services performed by him for the Government of the United States. Any person violating any of the terms of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished by a fine of not less than $1,000 or imprisonment for not less than six months, or by both such fine and imprisonment as the court may determine."

From your letter it appears that the duties of such an officer would be (1) to ascertain the needs of the Government and the facilities of his corporation to fill those needs, and (2) to advise both the Government and his corporation with respect to the advantages and desirability of a contract between them for the supplying of those needs. For performing virtually the self-same services he would receive compensation from both the Government and the corporation. This would seem to be in direct conflict with this statute. (See 33 Op. A. G. 273; 38 Op. 294; 39 Op. 501.)

The purpose of the two statutes quoted are similar. Both are intended to prevent a conflict between self interest and the interests of the Government. A man whose duty it is to serve the public weal as a Government servant should

not be put into a position where he can also serve his selfish interests. The law has long recognized this fundamental problem. Michoud v. Girod, 4 How. 503, 555; United States v. Carter, 217 U. S. 286, 306.

For the above reasons, I agree with the Judge Advocate General of the Army that both the legality and propriety of the proposed terms of employment are so doubtful that the employment should not be consummated.

Respectfully,

CHARLES FAHY,
Acting Attorney General.

LICENSING "FREE SILVER" FOR USE IN WAR PRODUCTION The Secretary of the Treasury is authorized to lease or license the use of "free silver" (uncoined silver owned by the Government which need not be held as security for outstanding silver certificates) in place of copper for war production in both Government and privately owned plants under an agreement to assure the return of the silver.

The SECRETARY OF THE TREASURY.

APRIL 7, 1942.

MY DEAR MR. SECRETARY: Your letter of April 1, 1942, requests my opinion on the following question: Can the Treasury lease or license the use of "free silver" in the place of copper for war production in both the Government and privately owned plants under an agreement to assure the return of the silver?

It is my opinion that you, as Secretary of the Treasury, can so lease or license the use of "free silver."

In your request for my opinion you state that:

"It is not intended that the silver will become a part of the products or be used up, but rather will become a part of the plant equipment in such a way as to permit substantially all of it to be returned to the Government at the termination of the war or before at the Government's request. The silver will not be sold, and safeguards will be adopted to insure the return of the silver and properly to indemnify the Government if any silver is lost from wear and tear or for other reason."

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The silver referred to in your statement is "free silver"—

uncoined silver owned by the Government which need not be held as security for outstanding silver certificates.

With the approval of the President, the Secretary of the Treasury is authorized by the Silver Purchase Act of June 19, 1934 (48 Stat. 1178; U. S. C., title 31, sec. 734 (b)), to sell “free silver" acquired under that act. This authority may be exercised "whenever and so long as the market price of silver exceeds its monetary value or the monetary value of the stocks of silver is greater than 25 per centum of the monetary value of the stocks of gold and silver." Neither of these conditions now exists. This statutory provision does not, therefore, confer authority, under present conditions, for the sale of "free silver" acquired under the Silver Purchase Act. But nothing in the act of June 19, 1934, or in any other statute, prohibits the leasing or licensing of "free silver" for the intended purposes.

Leasing of the "free silver" is authorized by statute (act of March 3, 1879, c. 182, 20 Stat. 377, 383; U. S. C., title 40, sec. 303 (a)). That statute provides as follows:

"That authority be, and is hereby, given to the Secretary of the Treasury to lease, at his discretion for a period not exceeding five years, such unoccupied and unproductive property of the United States under his control, for the leasing of which there is no authority under existing law, and such leases shall be reported annually to Congress.'

Nothing in the statutes which relate specifically to silver excepts free silver from the broad sweep of the authority conferred by the act of March 3, 1879, in the circumstances here presented.

The authority to lease conferred by the act of March 3, 1879, is not limited to property of any particular kind. It applies to property of any and every kind, owned by the United States and under the control of the Secretary of the Treasury, provided only that that property is "unoccupied and unproductive." Personal property as well as real property can be unoccupied or unproductive. Where the Congress intends to confine its authority to real property it usually says so in so many words, as it did, for example, in the surrounding sections of the Code by referring to "lands," "buildings" or "real property" (U. S. C., title 40, secs. 301, 302, 303b, 304, 304 a-m, 305, 306). Nothing in the legislative

history of the act of March 3, 1879, indicates that the Congress did intend to limit the statute to real property. In fact, the act of July 28, 1892 (27 Stat. 321)-giving similar power to lease to the Secretary of War-has been held to apply to personal property. 31 Op. A. G. 457. And the legislative history of that act shows that the Congress intended to give the Secretary of War in a more "restricted" manner the power previously given to the Secretary of the Treasury. Cong. Rec., v. 23, p. 2187 (March 18, 1892).

Licensing or other similar permission to use the "free silver" is also authorized by section 161 of the Revised Statutes (U. S. C., title 5, sec. 22) which provides that:

"The head of each department is authorized to prescribe regulations, not inconsistent with law, for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it."

Revocable licenses in the public interest for the use of Government property can be and have been granted many times under this statute. Illustrative is 34 Op. 320, in which Attorney General Stone held that the Secretary of the Navy had the power to grant revocable licenses to use Governmentowned patents without specific congressional authority.

Aside from the question whether the war powers of the President under the Constitution may, under certain circumstances, authorize the President to dispose of property of the United States independently of the constitutional provision authorizing the Congress to make and regulate such dispositions, it is clear that the Congress, in section 161 of the Revised Statutes, has given the head of a department power-short of complete alienation of title and controlover "the custody, use and preservation" of such property. Under this statute, the Secretary of the Treasury is empowered to permit the use of free silver when he does not relinquish paramount control over it. But such permission to use must result in a benefit to the Government. The benefit need not be consideration in the technical sense. Under the circumstances stated, the Government would be arranging for the use of the silver to permit the release of copper

a strategic and critical material vitally necessary in the manufacture of articles of war. Such a benefit is of the highest order. For governments, as for individuals, self preservation is one of the first rules of existence.

But such a benefit alone is not sufficient to justify a windfall to a private manufacturer. The lease or license should be so drafted that any exorbitant profit which might accrue to a private manufacturer by substitution of silver for copper would be compensated for by some payment or other benefit flowing from the private manufacturer to the United States. The payment or other benefit need not be exactly equivalent; a broad range of negotiation, of course, exists in which the Secretary may exercise his administrative discretion.

The leasing or licensing of "free silver," under the conditions stated by you, would not be inconsistent with the silver policy declared by the Congress. Section 2 of the Silver Purchase Act of 1934 states it to be "the policy of the United States that the proportion of silver to gold in the monetary stocks of the United States should be increased, with the ultimate objective of having and maintaining, one-fourth of the monetary value of such stocks in silver." The leased or licensed silver, though not in the possession of the Treasury or of the Government during the term of the lease, would still be a part of the "stocks of silver." That term, it is provided in section 10 of the Silver Purchase Act of 1934, "means the total amount of silver at the time owned by the United States (whether or not held as security for outstanding currency of the United States) and of silver contained in coins of the United States at the time outstanding." There is no statute which requires that "free silver" owned by the United States shall be retained in the possession of the Treasury in derogation of the authority to lease conferred by the act of March 3, 1879, or to license conferred by section 161 of the Revised Statutes. On the contrary, the policy of the Congress has been to direct that all necessary steps be taken to develop and conserve our supplies of strategic and critical materials. See act of June 7, 1939 (53 Stat. 811; U. S. C., title 50, sec. 98).

Since it is not desired to sell the "free silver" it is unnecessary to pass on the question of whether such statutes as the act of July 9, 1918, as amended (40 Stat. 845, 850; U. S. C.,