plete wholes," or as "belonging to the United States." A Government vessel is manifestly not subject to these objections.

The act of August 13, 1894, whose title was "An act for the protection of persons furnishing materials and labor for the construction of public works," as amended February 24, 1905 (33 Stat. 811), provides that any person or persons entering into a formal contract with the United States for the construction of any public building, or the prosecution and completion of any public work, shall be required to give bond with certain conditions.

In Title Guaranty & Trust Co. v. Crane Company (219 U. S. 24), the Supreme Court held that a vessel being constructed for the United States under contract, where title passed to the United States as the vessel was completed. was "a public work" within the meaning of the lastmentioned act. The court said (p. 33):

66* * *

The argument that the vessel was not a public work loses most of its force when it appears that the title was in the United States as soon as the first payment was made. Of course public works usually are of a permanent nature and that fact leads to a certain degree of association between the notion of permanence and the phrase. But the association is only empirical, not one of logic. Whether a work is public or not does not depend upon its being attached to the soil; if it belongs to the representative of the public it is public, and we do not think that the arbitrary association that we have mentioned amounts to a coalescence of the more limited idea with speech, so absolute that we are bound to read any public work as confined to work on land. It is not necessary to discuss in detail some opinions from the Attorney General's office in cases where the title to the vessel did not pass that looked rather in the opposite direction. It is enough to say that there has been no such clear and established construction as to cause us to yield our own view. On the other hand, the decision of some other courts has been in accord with the judgment below and with what we now decide." (United States v. Perth Amboy Shipbuilding & Engineering Co., 137 Fed. Rep. 689, 693. Ameri

can Surety Co. v. Lawrenceville Cement Co., 110 Fed. Rep. 717, 719. United States v. Aetna Indem. Co., 40 Washington, 87.)

In view of these decisions of the Supreme Court, I am of the opinion that the employment of laborers and mechanics in making repairs to Government vessels is employment. upon a public work of the United States, and is therefore subject to the restrictions of the act of August 1, 1892.

Respectfully,

GEORGE W. WICKERSHAM.

The SECRETARY OF COMMERCE AND LABOR.

RETIRED OFFICERS OF ARMY AND MARINE CORPS ARE OFFICERS IN THE EMPLOY OF THE GOVERNMENT.

An officer of the Unitel States Army or of the Marine Corps, retired from active service only, and not wholly retired from service, is an officer in the employ of the Government, and so within the prohibition of section 1782 of the Revised Statutes.

DEPARTMENT OF JUSTICE,

May 17, 1912.

SIR: The Attorney General has referred to me yours of the 13th to him, transmitting the letter of Maj. Henry Leonard, United States Marine Corps, to you of date May 9, in which Maj. Leonard requests that the opinion of the Attorney General be obtained "as to the status of a retired officer with relation to section 1782, Revised Statutes of the United States."

The section in question is as follows:

"No Senator, Representative, or Delegate, after his election and during his continuance in office, and no head of a Department, or other officer or clerk in the employ of the Government, shall receive or agree to receive any compensation whatever, directly or indirectly, for any services rendered, or to be rendered, to any person, either by himself or another, in relation to any proceeding, contract, claim, controversy, charge, accusation, arrest, or other matter or thing in which the United States is a party, or directly or indirectly interested, before any Department, court-martial,

bureau, officer, or any civil, military, or naval commission whatever. Every person offending against this section shall be deemed guilty of a misdemeanor, and shall be imprisoned not more than two years, and fined not more than ten thousand dollars, and shall, moreover, by conviction therefor, be rendered forever thereafter incapable of holding any office of honor, trust, or profit under the Government of the United States."

It is true, as suggested by Maj. Leonard in his communication to you, that this section is a penal statute, and is therefore to be strictly construed, but none the less full effect is to be given to the intention of Congress as manifested by the terms of the enactment.

The terms of the statute are comprehensive. They extend to every "officer or clerk in the employ of the Government." The prohibition is not simply upon those who because of official position or relation may be able to help or hinder the interests or ambitions of those before whom they appear, but extends to every officer or clerk in the employ of the Government, whatever his rank or function. As first introduced in the first session of the Thirtyeighth Congress the bill was limited in its scope to Members of Congress; and in the discussion of the measure stress was laid upon the influence which Members could exert upon the Departments and upon courts-martial, through their legislative powers, and especially upon the sinister influence which might be exerted by Senators because of their power to reject or to confirm nominations to office. But in the course of its passage through Congress the bill was broadened to include any and every officer and clerk in the employ of the Government. The amendment implied that there was a peculiar opportunity for influence inherent in official position, whatever its dignity, and in the associations of office, which, while it might be properly used, if the prompting to it was one of public spirit or duty, should not be used as a means of pecuniary advantage to the individual holding the position, as in such case opportunities conferred by the Government might be used to its detriment. The statute is a penal enactment, but it

had a remedial purpose, and it was plainly the intent of Congress to make the remedy an adequate one, and so, instead of selecting and enumerating in detail all the offices and positions in which the danger of abuse was apparent, Congress made sure of its purpose by including generally every officer and clerk in the employ of the Government. Senator Trumbull, chairman of the Judiciary Committee, who reported the bill with this amendment, among others, said in the course of the discussion:

"This is not a bill to prevent attorneys from practicing in courts of law, but it is a bill to prevent Representatives and Senators in Congress and officers of the Government who are paid for their services from receiving a compensation for advocating claims in the Department and before the bureaus of the Government, and before courts-martial. That is the particular question that is pending." (Cong. Globe, pt. 1, 1st sess. 38th Cong. 555, 561.)

It was clearly within the power of Congress to make the statute comprehensive of everybody in the employ or pay of the Government, and the nature of the case called for a general, rather than for a limited, designation of the persons to be prohibited.

It is suggested that the designation of "officer or clerk' is limited by the words "in the employ of the Government." These words were not in the law as originally enacted, which, so far as concerned the persons prohibited, read:

"That no member of the Senate or House of Representatives shall, after his election and during his continuance in office, nor shall any head of a Department, head of a bureau, clerk, or any other officer of the Government receive or agree to receive, etc." (13 Stat. 123.)

The law became and is section 1782 of the Revision of 1873, and now reads:

"No Senator, Representative, or Delegate, after his election and during his continuance in office, and no head of a Department, or other officer or clerk in the employ of the Government, shall receive or agree to receive, etc."

Saving the inclusion of a Delegate to Congress, the change in the law is one merely of style or wording.

"Head of a bureau" is omitted from the wording of the statute, but plainly remains within its scope. There are less words in the new description than in the old, and it might be further abbreviated without restricting its significance.

It is said that the law embraces only officers and clerks engaged in some "fixed or regular service or business." To this I can not agree. The qualifying words of the statute limit its designation to officers and clerks in some employ or service of the Government, a limitation that would no doubt be implied if it were not expressed. If the words "in the employ" were omitted from the statute its sense would not be changed. Certainly those words qualify the designation of "clerk" as much as that of "officer." I can not conceive of a clerk of the Government who is not in its employ or service, and the same is true of an officer. A man is not an officer of the Government if he is not in some way and to some extent in its employ or service.

The question then is whether or not a person on the retired list of the Marine Corps of the United States is an officer of the Government. In this respect the Marine Corps is to be considered as a part of the Army, for section 1622, R. S., provides:

"The commissioned officers of the Marine Corps shall be retired in like cases, in the same manner, and with the same relative conditions, in all respects, as are provided for officers of the Army, except as is otherwise provided in the next section."

The next section simply provides for the composition of the retiring board.

Attention is called to the case of People v. Duane (121 N. Y. 367), the ruling in which is undoubtedly to the effect that a retired Army officer is a pensioner rather than an official, and so is not within the terms of a statute of New York which provides as to aqueduct commissioners that "they and their successors shall hold no other Federal, State, or municipal office, except the office of notary public or commissioner of deeds." And to like effect is the case of Reed v. Schon (2 Cal. App. 57). In this case