Any question, therefore, of the right of the company to construct a bridge without the express authority of Congress which may have existed prior to the passage of the act of 1899, has been conclusively settled by that act. The failure of Congress to except from the specific provisions of the act cases like this, which it had been held were excepted from the act of 1890, is controlling as to the intent of Congress. 1 therefore advise you that you are not "authorized in acting upon the application of petitioner for permission to proceed with the construction of the bridge," until the consent of Congress to the building of the bridge is first obtained. Respectfully, The SECRETARY OF WAR. W. H. MOODY. COMMISSIONER OF INTERNAL REVENUE-RECONSIDERA TION OF CLAIM FOR TAXES AFTER JUDGMENT. The Commissioner of Internal Revenue has no power, under section 3220, Revised Statutes, to reopen and allow the claim of the New York and Cuba Mail Steamship Company for taxes voluntarily paid under a mutual mistake of law, as the judgment of the Supreme Court (200 U. S., 488), in sustaining the ruling of the Commissioner that the company had no legal claim against the Government, deprived the Commissioner of jurisdiction to again entertain the claim. The Commissioner may, however, allow similar claims where no legal protest has been made; but such cases must arise under a misapprehension of fact and not of law. DEPARTMENT OF JUSTICE, SIR: I have the honor to acknowledge the receipt of your letter of the 17th ultimo, inclosing a letter of the Commissioner of Internal Revenue in which an expression of my opinion is requested on the following questions: First. Has he the power under section 3220 of the Revised Statutes to reopen the claim of the New York and Cuba Mail Steamship Company and allow the same notwithstanding. that the judgment of the Supreme Court of the United States has barred that company from legal recovery of the tax? Second. Has he like authority to allow similar claims in which there is no showing of legal protest made and in which such showing may not be possible? The first question must be answered in the negative. In the argument of the case in the Supreme Court (U. S. v. New York && Cuba Mail Steamship Co., 200 U. S., 488) the Government did not attempt to sustain the constitutionality of the law owing to the decision of the court in the Fairbank case (181 U. S., 283); but the contention was confidently pressed that the claim was without merit because the tax was voluntarily paid under a mutual mistake of law. The court sustained this contention of the Government and upheld the original decision of the Commissioner disallowing the claim. It necessarily follows that the decision of the court sustaining the ruling of the Commissioner on the ground that the company had no legal claim against the Government, deprived the Commissioner of jurisdiction to again entertain the claim. The court fully considered, as the opinion discloses, both section 3220, Revised Statutes, and the act of May 12, 1900, upon which petitioner for this refund relies. The court said, page 495: "The argument is that by this provision the question of duress or compulsion is taken out of the case,' because in most of the instances enumerated it is inconceivable that there should be any protest or duress.' And it is further alleged that the act of 1900 was not considered in the Chesebrough case. It certainly does not follow that because in some instances protests or duress can not exist, that they can not exist in other cases, nor that the statute intended to destroy the difference between voluntary and involuntary payment of taxes. In the Chesebrough case section 3220 of the Revised Statutes of the United States was considered. It authorized the Commissioner of Internal Revenue to remit, refund, and pay back all taxes that appear to be unjustly assessed or excessive in amount, or in any manner wrongfully collected. The words in italics are identical with those in the act of May 12, which are relied on by defendant in error. Commenting on section 3220, the court said, in the Chesbrough case: It is argued that the provisions of section 3220, for the repayment of judg ments against the collector, rendered protest or notice. unnecessary for his protection, but it was clearly demanded for the protection of the Government in conducting the extensive business of dealing in stamps, which were sold and delivered in quantities, and without it there would not be the slightest vestige of involuntary payment in transactions like that under consideration. And we find no right of recovery, expressly or by necessary implication, conferred by statute in such circumstances.' "We, therefore, think that this case is governed by the Chesebrough case, and on its authority judgment is reversed and case remanded with directions to sustain the demurrer." In answer to the second question, undoubtedly there are cases where a showing of protest need not be made to warrant the Commissioner in assuming jurisdiction and granting the refund, but such cases arise under a misapprehension of fact and not of law. For instance, the use by mistake of a ten dollar stamp when a five dollar stamp only was intended and required. But in all cases falling within the ruling of the court in the New York and Cuba Mail Steamship Company case protest, or what amounts to the same thing, payment under duress, is necessary to entitle the petitioners to a refund. Respectfully, The SECRETARY OF THE TREASURY. W. H. MOODY. SUPPLIES FOR DEPARTMENTS - ADVERTISEMENTS-CON TRACTS. In advertising for supplies for the various Departments of the Government as provided in section 3709, Revised Statutes, as amended by the act of January 27, 1894 (28 Stat., 33), the advertisement may be issued in the name of all the Departments, for supplies common to all, provided the advertisement contains the quantity of supplies required by each Department; but contracts for supplies can only be entered into by the appropriate officer of each Department. DEPARTMENT OF JUSTICE, SIR: I have the honor to reply to your request for my opinion whether certain changes in the manner of purchas ing supplies for the several Executive Departments can be made under existing law. These proposed changes and the questions arising thereon are stated by the Chairman of the Committee on Department Methods in his letter to you as follows: "In order to carry out your instructions to this committee that means be found by which Government supplies be standardized and purchased through a central purchasing office, and also to secure uniform and reasonable prices among the different Departments, it has been determined that the first step should be the adoption of a schedule of supplies common to all Departments; for example, that Item No. 1 in the schedule of any Department shall be Item No. 1 in all other Departments, and shall represent the same article; and that the total quantity of each article needed for the entire Government service shall be covered by one. advertisement and that each bidder shall be invited to submit a single proposal for each article in the quantity specified as required for all Departments. "The first question is, Can such an advertisement be lawfully issued; and if so, by whom? Again, if all articles used by the Government service can be advertised for in bulk under a common schedule, can any one Department or officer enter into a contract that shall be available to the whole service in the same way as if each branch thereof had advertised and made separate contracts?" Section 3709 of the Revised Statutes as amended by the act of January 27, 1894 (28 Stat., 33), provides: "All purchases and contracts for supplies or services, in any of the Departments of the Government, except for personal services, shall be made by advertising a sufficient time previously for proposals respecting the same, when the public exigencies do not require the immediate delivery of the articles, or performance of the service. When immediate. delivery or performance is required by the public exigency, the articles or service required may be procured by open purchase or contract, at the places and in the manner in which such articles are usually bought and sold, or such services engaged, between individuals. And the advertisement for such proposals shall be made by all the Execu tive Departments, including the Department of Labor, the United States Fish Commission, the Interstate Commerce Commission, the Smithsonian Institution, the Government Printing Office, the Government of the District of Columbia, and the superintendent of the State, War, and Navy building, except for paper and materials for use of the Government Printing Office, and materials used in the work of the Bureau of Engraving and Printing, which shall continue to be advertised for and purchased as now provided by law, on the same days and shall each designate two o'clock post meridian of such days for the opening of all such proposals in each Department and other Government establishment in the city of Washington; and the Secretary of the Treasury shall designate the day or days in each year for the opening of such proposals and give due notice thereof to the other Departments and Government establishments. Such proposals shall be opened in the usual way and schedules thereof duly prepared and, together with the statement of the proposed action of each Department and Government establishment thereon, shall be submitted to a board, consisting of one of the Assistant Secretaries of the Treasury and Interior Departments and one of the Assistant Postmasters-General, who shall be designated by the heads of said Departments and the PostmasterGeneral respectively, at a meeting to be called by the official of the Treasury Department, who shall be chairman thereof, and said board shall carefully examine and compare all the proposals so submitted and recommend the acceptance or rejection of any or all of said proposals. And if any or all of such proposals shall be rejected, advertisements for proposals shall again be invited and proceeded with in the same manner." In reporting the amendment of 1894 (which consisted of all after the second sentence), the House Committee said (H. R. Report 152, October 30, 1893): "The purpose of the bill is to fix uniform dates for inviting proposals for fuel, ice, stationery, and other miscellaneous supplies for all of the Executive Departments and other offices in Washington, and to provide for a board to compare all of the bids received, and to recommend acceptance 13243-VOL 25-04-39 |