(1-F-2.) [Extract from the Annual Report of the Secretary of the Navy, 1907.] CONFIDENTIAL PLANS AND SPECIFICATIONS. These statutes establishing the Returns Office (secs. 512 to 515 and secs. 3744, 3745, R. S.) provide that papers on file there may be examined by "any person" desiring to do so, and that copies thereof shall be furnished upon payment of certain fees. It is not believed that Congress intended by these statutes to require that data of a confidential nature relating to any of the operations of the Government should thus be placed at public disposal. While it is not altogether clear that the plans and specifications accompanying the contracts for the construction of naval vessels are within the meaning of these statutes, it is suggested that all doubt on the subject should be removed by a distinct provision of law. This provision might appropriately be made in terms analogous to section 1076 of the Revised Statutes, which in conferring upon the Court of Claims power to call upon any of the departments for information or papers, couples such authority with the proviso that "the head of any department may refuse and omit to comply with any call for information or papers when, in his opinion, such compliance would be injurious to the public interest.' (1-F-3.) Exhibit cc. [Senate Report No. 470, Sixtieth Congress, first session.] AMENDING SECTION 3744 OF REVISED STATUTES SO AS TO PERMIT SECRETARY OF NAVY TO WITHHOLD CONFIDENTIAL PLANS, SPECIFICATIONS, ETC. The Committee on Naval Affairs, to whom was referred the bill (S. 5616) to amend section 3744 of the Revised Statutes, having considered the same, report thereon with a recommendation that it pass. The bill has the approval of the Navy Department, as will appear by the following communication: "NAVY DEPARTMENT, Washington, January 11, 1908. "SIR: I have the honor to invite attention to the remarks appearing on page 15 of my annual report for 1907, regarding the requirement of existing laws (secs. 512 to 515, and secs. 3744 and 3745 of the Revised Statutes) that certified copies of all contracts made by the Secretary of the Navy be filed in the Returns Office of the Department of the Interior, 'together with all bids, offers, and proposals to him made by persons to obtain the same, and with a copy of any advertisement he may have published inviting bids, offers, or proposals for the same.' "Inasmuch as under the above provisions copies of contracts and papers when so filed in the Returns Office are open to inspection by 'any person' desiring to examine them, it is suggested that section 3744 of the Revised Statutes be so amended as to except from its operation plans, specifications, and other data of a confidential nature relating to contracts for the construction of naval vessels. While it is not altogether clear that such papers are within the meaning of these statutes as they now read, the passage of an amendment explicitly excepting them is recommended, in order that all doubt on the subject may be removed. "For the convenience of the committee, if the above recommendation should meet with approval, I inclose the draft of a bill 'to amend section 3734 of the Revised Statutes.' "V. H. METCalf, "Very respectfully, "Hon. EUGENE HALE, "Chairman Committee on Naval Affairs, United States Senate." (1-F-4.) Exhibit dd. "Secretary. [Memorandum for the Secretary in the matter of compensation of notaries public in and for the District of Columbia employed in the departments.] The provisions of law relative to the appointment, qualification, etc., of notaries public, are found in the following sections of the Code of the District of Columbia, approved March 3, 1901: "SEC. 558. Notaries.-The President shall also have power to appoint such number of notaries public, residents of said District, as, in his discretion, the business of the District may require. "SEC. 559. Tenure of office.-Said commissioners of deeds and notaries public shall hold their offices for the period of five years, removable at discretion. "SEC. 560. Notaries in States.-Notaries public of the several States, Territories, and the District of Columbia are authorized to take depositions and do all other acts in relation to taking testimony to be used in the courts of the District of Columbia, take acknowledgments and affidavits in the same manner and with the same effect as United States commissioners may now lawfully take or do. "SEC. 561. Oath and bond.-Each notary public, before entering upon the duties of his office, shall take the oath prescribed for civil officers in the District of Columbia, and shall give bond to the United States in the sum of two thousand dollars, with security to be approved by the Supreme Court or a justice thereof, for the faithful discharge of the duties of his office. "SEC. 562. Seal.-Each notary public shall provide a notarial seal, with which he shall authenticate all his official acts. "SEC. 571. Fees.-The fees of notaries public shall be— "For each certificate and seal, fifty cents. "Taking depositions or other writings, for each one hundred words, ten cents. "Administering an oath, fifteen cents.” * Section 3745, Revised Statutes, requiring officers executing public contracts to make oaths of disinterestedness, is as follows: "It shall be the further duty of the officer, before making his return, according to the preceding section, to affix to the same his affidavit in the following form, sworn to before some magistrate having authority to administer oaths: 'I do solemnly swear (or affirm) that the copy of contract hereto annexed is an exact copy of a contract made by me personally with —; that I made the same fairly without any benefit or advantage to myself, or allowing any such benefit or advantage corruptly to the said; or any other person, and that the papers accompanying include all those relating to the said contract, as required by the statute in such cases made and provided.' The Executive order of January 5, 1905, prohibiting notarial charges by notaries public who are Government employees, reads as follows: "It is hereby ordered that hereafter no officer, clerk, or employee in the executive service of the Government, who is also a notary public, shall charge or receive any compensation whatever for performing any notarial act for an officer, clerk, or employee of the Government in his official capacity, or in any matter in which the Government is interested, or for any person when, in the case of such person, the act is performed during the hours of such notary's service to the Government. Disobedience of this order shall be ground for immediate dismissal from the service." The effect of this order is to prohibit notaries from receiving fees for services rendered which the law authorizes them to exact; and as there is no departmental regulation in the Interior Department requiring clerks who are notaries to render service in such official capacity without payment of the fees prescribed by law, it would seem that, in so far as such service is concerned, where no fee is paid, it is the rendition of voluntary service, which is inhibited by the deficiency appropriation act of March 3, 1905. A notary in qualifying under his appointment incurs some expense, as for seal stamps, etc., approximately $10. Where bond is furnished by a surety company (many notaries preferring not to place themselves under the obligation which would be involved in providing personal sureties) the cost is from $2.50 to $5 per $1,000 per annum during the term of service, or an average of $25 for the term. Where notaries are appointed for service in the department, these expenses can not be defrayed out of the contingent fund and must therefore be a personal expense to the notary. If the notaries on duty in the Interior Department should surrender their commissions, or fail to renew them at the expiration of the term thereof, it would be necessary, in order to comply with the law in regard to the execution of oaths of disinterestedness connected with public contracts, to employ an outside notary and pay him the statutory fee. In the Secretary's office, it has been the custom in executing such oaths not to charge the fee of 50 cents provided by statute, but only the sum of 25 cents. It is suggested that any apparent injustice that is done departmental notaries may be corrected by the addition of the following clause to the above Executive order, to wit: "This order shall not apply to oaths of disinterestedness, or other oaths required to be made by law, provided that the work in connection therewith is not performed during office hours." DEPARTMENT OF THE INTERIOR, OFFICE OF THE ASSISTANT ATTORNEY GENERAL, The SECRETARY OF THE INTERIOR. SIR: I have examined with some care the memorandum prepared for you in the P. and M. Division, March 27th instant, with relation to compensation of notaries public in and for the District of Columbia, employed in the department. In said memorandum the Executive order of January 5, 1905, is set out and its effect briefly discussed. In said memorandum it is stated that "The effect of this order is to prohibit notaries from receiving fees for services rendered which the law authorizes them to exact; and as there is no departmental regulation in the Interior Department requiring clerks who are notaries to render service in such official capacity without payment of the fees prescribed by law, it would seem that, in so far as such service is concerned, where no fee is paid, it is the rendition of voluntary service, which is inhibited by the deficiency appropriation act of March 3, 1905." I have examined the appropriation act of March 3, 1905, referred to in the above quote, and am not inclined to agree with the writer of the memorandum that the rendition of such service as is prohibited by Executive order of January 5, 1905, is within the inhibition. The inhibition, if any, must be found in a single sentence quoted from the amendment to section 3679, Revised Statutes, found near the end of the act of March 3, 1905, supra. Said sentence reads as follows: "Nor shall any department or officer of the Government accept voluntary service for the Government or employ personal service in excess of that authorized by law, except in cases of sudden emergency involving the loss of human life or the destruction of property." As I view this language of the statute, considered in connection with its context and with laws in pari materia, such as the act of May 1, 1884 (23 Stat., 17), I think Congress intended to prevent the employment of services official, clerical, or manual, unless such service is authorized by law, and did not have in mind, nor did it intend to include, notaries public and official acts performed by them under their commissions. Nor am I able to see great force in the suggestion in that part of the memorandum quoted supra, with reference to the absence of departmental regulation in the Interior Department with reference to clerks who are notaries. The Executive order is tantamount to a similar order or regulation issued by each of the heads of the several departments, and so far as the Interior Department is concerned, it has the same effect and operation as if it had been issued by the Secretary instead of the President. I see no objection to amending the order of January 5, 1905, as suggested in the memorandum, by the addition of the following words: "This order shall not apply to oaths of disinterestedness, or other oaths required to be made by law, provided that the work in connection therewith is not performed during office hours." Very respectfully, FRANK L. CAMPBELL, PROHIBITING NOTARIAL CHARGES BY NOTARIES PUBLIC WHO ARE GOVERNMENT EMPLOYEES. Order. DEPARTMENT OF THE INTERIOR, By direction of the President. It is hereby ordered that hereafter no officer, clerk, or employee in the executive service of the Government, who is also a notary public, shall charge or receive any compensation whatever for performing any notarial act for any officer, clerk, or employee of the Government in his official capacity, or in any matter in which the Government is interested, or for any person when, in the case of such person, the act is performed during the hours of such notary's service to the Government. Disobedience of this order shall be ground for immediate dismissal from the service. E. A. HITCHCOCK, Secretary. On March 31, 1905, the President directed the amendment of the above by adding at the end thereof the following paragraph: This order shall not apply to oaths of disinterestedness, or other oaths required to be made by law, provided that the work in connection there with is not performed during office hours. APRIL 7, 1905. E. A. HITCHCOCK, Secretary. (1-F-5.) Exhibit ee. [Extract of minutes of meeting of Nov. 3, 1908.] DEPARTMENT OF THE INTERIOR, COMMITTEE ON REGULATIONS. Section 3743, R. S. (as amended by act of July 31, 1894, 28 Stat., 210) required: "All contracts to be made by virtue of any law, and requiring the advance of money, or in any manner connected with the settlement of public accounts, shall be deposited promptly in the offices of the Auditors of the Treasury, according to the nature of the contracts: Provided, That this section shall not apply to the existing laws in regard to the contingent fund of Congress." Section 3744, R. S. requires: "It shall be the duty of the Secretary of War, of the Secretary of the Navy, and of the Secretary of the Interior to cause and require every contract made by them severally on behalf of the Government, or by their officers under them appointed to make such contracts, to be reduced in writing and signed by the contracting parties, with their names at the end thereof, a copy of which shall be filed by the officer making and'signing the contract in the Returns Office of the Department of the Interior as soon after the contract is made as possible and within 30 days, together with all bids, offers, and proposals to him made by persons to obtain the same, and with a copy of any advertisement he may have published inviting bids, offers, or proposals for the same. All the copies and papers in relation to each contract shall be attached together by a ribbon and seal and marked by numbers in regular order, according to the number of papers composing the whole return." The purpose of both sections is to secure a written record of the agreements to which the Government is a party and to provide for their permanent filing and safe-keeping. In addition, the former section serves to make the original contracts available in the audit of accounts connected therewith; while the latter section serves to make a copy thereof and the advertisement issued and the proposals received and considered in connection with the award available for purposes of publicity to all persons interested. In practice the latter purpose is accomplished by section 3744 only as to the general public, for whenever required as evidence in court or elsewhere the original in an auditor's office is generally used instead of the copy in the Returns Office of this department. Therefore your committee on regulations recommend that legislation be secured to provide: 1 (1-F-5-A). For the repeal of the requirement of filing copies of contracts and original proposals in the Returns Office. 2 (1-F-5-B). For the permanent retention of all proposals in the administrative office negotiating the contracts. 3 (1-F-5-C). For the provision of facilities for publicity of such proposals in the administrative offices and of the contracts in the auditor's offices. 4 (1-F-5-D). For the abolition of the Returns Office and the disposition of all records therein, and the committee further recommend that such proposed legislation be referred to and considered by the special committee on Government contracts (chairman, Mr. James A. Wetmore, Supervising Architect's Office, Treasury Department), appointed by the President June 18, 1907, in order that the legislation asked may be uniform for the entire Government service. War DepartmeNT, Washington, January 20, 1912. DEAR Mr. PRESIDENT: I have the honor to transmit herewith a report prepared by the War Department board on business methods on the recommendations of your Commission on Economy and Efficiency concerning the abolishment of the Returns Office of the Interior Department, etc. I concur in the recommendations of the War Department board. Respectfully, To the PRESIDENT, H. L. STIMSON, Secretary of War. White House. [Report No. 16.] WAR DEPARTMENT, Washington, January 13, 1912. To the honorable the SECRETARY OF WAR. SIR: The report on the Returns Office of the Interior Department submitted to the President by the Commission on Economy and Efficiency, November 17, 1911, having been referred to the War Department board on business methods for its consideration and report, the board has the honor to state that in its report to you of November 18, 1911, upon the draft of a bill for publicity in making Government contracts, submitted by the Department of the Interior, it expressed the conclusion "that all real needs in the matter can be fully met by legislation that will repeal the requirements of existing law relative to the maintenance of a Returns Office in the Interior Department and the filing of copies of contracts therein, and by further legislation that will make the copies of contracts that are filed in the offices of the various auditors as accessible to the public as are copies of contracts now filed in the Returns Office of the Interior Department.' The recommendations of the Commission on Economy and Efficiency are summarized in four paragraphs. The first two paragraphs cover the recommendations of this board referred to above. The third paragraph proposes that the requirement that contracts for the War, Navy, and Interior Departments be in writing be modified so as to apply only to a contract involving $1,000 or more, and, as so modified, be extended to all executive departments and independent establishments, with a proviso that oral or informal contracts, regardless of amount involved, may be made in case of extraordinary emergency, involving loss of life or destruction of Government property. Paragraph 4 proposes the substitution of a certificate in lieu of the affidavit now required by statute to be attached to contracts. This board believes that the additional recommendations of the Commission on Economy and Efficiency are in the interest of good administration and would effect economy in the saving of the notarial fees in those cases where the oath can not now under the law be administered without expense by a Government employee competent for the purpose. Whether the proposed draft of a bill as found on pages 13 to 17 is best suited to put into effect the recommendations of the Commission on Economy and Efficiency is a question upon which the board does not feel competent to express an opinion, believing it to be a matter calling for expert legal advice. Very respectfully, F. C. AINSWORTH, Major General, United States Army, President, The Adjutant General. Brigadier General, United States Army, Member, Inspector General. Brigadier General, United States Army, Member. The PRESIDENT: I return herewith the report of the Commission on Economy and Efficiency regarding the Returns Office of the Department of the Interior, and, in response to your request for my judgment thereon, I am in full sympathy with the recommendations as summarized by the commission for the abolishment of the Returns Office in this department, for the reasons as outlined in their report at length. While the estimate made by the commission as to the present money cost of the maintenance of the Returns Office may be somewhat excessive, nevertheless, for the purpose of economy and efficiency, as applied not only to the money cost of the office but to the proper administration of this part of the public service, I believe the recommendations generally are well founded. I desire, however, to call attention to the draft of bill accompanying the report, particularly to the proposed amendment of section 3745, Revised Statutes, which, in its present form, would seem to include contracts made on behalf of the Government covering both receipts and expenditures of moneys. Under the present rulings, copies of the contracts entered into between the Government and water-right applicants under the reclamation act are required to be filed in the Returns Office of this department. I understand, however, that grazing permits (in effect, contracts of a similar nature), issued by the Forest Service of the Department of Agriculture, are not filed |