While no voucher was submitted with your letter, the contractor's original invoice and copies of correspondence setting forth the pertinent facts were forwarded, and it is understood that if payment of the invoice is determined to be proper, it would be paid upon a voucher certified by you. Therefore, the question presented by your letter will be answered at this time, but in requesting decisions in the future on questions relating to the payment of vouchers presented to you for certification, the procedure contemplated by 21 Comp. Gen. 1128 should be observed.

It appears that under item 1 of contract No. WSA201t-19 the contractor agreed to furnish, for delivery at the aforementioned cadet basic school, during the period May 1 to May 31, 1943, as ordered from time to time by the supply officer, an estimated quantity of 2,000 gallons of milk, fresh, Grade A, pasteurized, Type II, at a unit price of $0.415 per gallon. It appears further that a total of 2,220 gallons of milk were delivered thereunder for which payment has been made to the contractor at the contract unit price. The instant voucher was presented by the contractor to the U. S. Merchant Marine Cadet Basic School as a supplemental bill for the 2,220 gallons of milk delivered under the contract.

With regard thereto, it is stated in a letter dated June 7, 1943, from the supply officer at the cadet basic school to the Chief Procurement Officer, U. S. Maritime Service-a copy of which was forwarded with your letter of July 26-that the contractor's bid of $0.415 per gallon was the lowest received for supplying milk to the station for May, 1943 and, accordingly, that the contractor was awarded contract No. WSA201t-19; but that subsequent thereto, the Department of Agriculture of the State of California informed the contractor that the legal minimum price set by the State for milk deliveries of the type involved was $0.43 per gallon. It is stated further in said letter that the State claims that it has jurisdiction over sales of milk to the cadet basic school here involved, and that the contractor has submitted its supplemental invoice at the insistence of the State. In a memorandum dated June 18, 1943, from the Legal Office, U. S. Maritime Service, to the Chief Finance Officer-a copy of which was enclosed with your letter of July 26-it is stated as follows:

1. It is the opinion of this office that the California State Department of Agriculture has jurisdiction over the purchase of milk in that State by the U. S. Merchant Marine Cadet Basic School, in view of the decision of the Supreme Court of the United States of America in Penn Dairies Inc. v. The Milk Control Commission of the Commonwealth of Pennsylvania, No. 399-October Term 1942, March 1, 1943.

While your letter of July 26 and the enclosures forwarded therewith do not contain any definite evidence to such effect, it is assumed that, at the time the contract was performed, the cadet basic school at San Mateo, at which the sale and delivery of the milk furnished by

the contractor took place, was not located within territory over which the Federal Government had exclusive jurisdiction. Otherwise, there clearly would be no basis for the claim of the Department of Agriculture of the State of California that it had jurisdiction over sales of milk to said station. Pacific Coast Dairy, Inc. v. Department of Agriculture of California, 318 U. S. 285, 87 L. Ed. (Ad. Ops.) 560. Also, there would appear to be no basis for the statement in the memorandum of June 18, 1943, quoted above, that, in view of the decision of the Supreme Court in the case of Penn Dairies, Inc. v. The Milk Control Commission of the Commonwealth of Pennsylvania, 318 U. S. 261, 87 L. Ed. (Ad. Ops.) 549, the California State Department of Agriculture has jurisdiction over the purchases of milk by the cadet basic school at San Mateo.

The question for decision, therefore, is whether, assuming that under the decision of the Supreme Court in the Penn Dairies case, supra, the Department of Agriculture of the State of California has jurisdiction over the sale and delivery of milk in that State by a dealer to the merchant marine cadet school here involved, the United States thereby is required to make payment to said dealer at the minimum price fixed by the State for the milk delivered to said school-despite the existence of a contract between the dealer and the United States calling for delivery of the milk at a price which is lower than the minimum fixed by the State.

In the Penn Dairies case, it was stated by the Supreme Court that the application of a minimum price regulation issued by the Pennsylvania Milk Control Commission, pursuant to a State law, to the sale of milk by a dealer to the United States-which sale was consummated within the territorial limits of the State and in a place subject to its jurisdiction-did not constitute a violation of the implied constitutional immunity of the national Government from State regulation of the performance by Federal officers and agents of governmental functions, in the absence of Congressional legislation forbidding the application of the regulation to such a transaction. Therefore, the Court held that the State had authority to cancel the license of a milk dealer for selling milk to the Federal Government, under such circumstances, at a price which was less than the minimum fixed by the State milk control commission. However, there is nothing in the opinion of the Court from which it may be said that it was intended, even remotely, to hold that the Federal Government was bound or required to make payment for milk purchased by it at not less than the minimum price established by a State milk control commission, or that a dealer is entitled to be paid for milk delivered to the Federal Government at the minimum price fixed by a State Commission, despite the existence of a contract between said dealer and the United States calling for the delivery of milk at a lower price. On the contrary, in upholding the

State regulation considered in the Penn Dairies case, the Supreme Court pointed out explicitly that—

Here the state regulation imposes no prohibition on the national government or its officers. They may purchase milk from whom and at what price they will, without incurring any penalty. * * *

Hence, while it may be that the State of California has jurisdiction to regulate the sale and delivery of milk to the cadet training school here involved, to the extent of exercising control over the milk dealer, its jurisdiction may not be said to extend to the regulation of the Federal Government, or of its officers or agents in the purchase of milk for the said school. Consequently, there is no obligation on the United States to make payment of any amount in excess of the unit price of $0.415 per gallon stipulated in contract No. WSA201t-19, supra, for the milk delivered by the claimant during May, 1943, to the cadet training school; and, since you state that the contractor has been paid its contract price for the milk so delivered by it, no authority exists for payment of the additional price of $0.015 per gallon claimed on the supplemental invoice.

(B-36003)

ENVELOPES STATUTORY REQUIREMENTS AS TO PURCHASES BY AGENCIES NOT IN EXECUTIVE BRANCH OF GOVERNMENT

The provisions of the act of June 26, 1906, that the Postmaster General shall contract for all envelopes for use by executive departments, and

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all Government bureaus and establishments," apply to all Government departments, bureaus and establishments irrespective of whether they are in the executive branch of the Government, and, therefore, envelopes for the use of the Administrative Office of the United States Courts-an establishment not in the executive branch of the Government-should be procured in conformity with the provisions of the said act. 21 Comp. Gen. 105, distinguished.

Comptroller General Warren to the Director, Administrative Office of the United States Courts, September 1, 1943:

I have your letter of July 26, 1943, as follows:

As you may know, the Post Office Department limited its contracts for the six-month period beginning July 1, 1943, to orders for not less than 5,000 envelopes of sizes up to and including 42 inches by 10% inches and to orders of not less than 1,000 envelopes of the larger sizes. This restriction is doubtless desirable both from the standpoint of the contractors and of the majority of the Government agencies; however, for a substantial portion of our requirements the purchase of 5,000 envelopes will result in more waste than benefit as in some instances such a quantity would be a ten years' supply.

We have inquired of all contractors listed in the Post Office Contract Schedule and only three firms, including only those having contracts for items of little importance to us, have agreed to accept orders for less than the minimum of 5,000.

Therefore, we are considering the advisability of our making separate contracts for the requirements of the Judiciary or for such portion of those requirements as cannot be purchased under the Post Office contracts.

Under date of June 4, 1941, this office submitted the question as to whether the contracts executed by the Procurement Division, Treasury Department, cover the requirements of the Judiciary. In your reply of August 6, 1941, (B17617),

you advised that the basic act of June 17, 1910, under which the Procurement Division operates "dealt specifically with the supplies for the Executive departments and other Government establishments in Washington'" and had been held to include only other Executive establishments. As a result it was decided that the Act would not make it mandatory that materials for the Judicial branch of the Government be purchased under the contracts executed by the Procurement Division.

Title 39, United States Code, Section 355 reads as follows:

"The Postmaster General shall contract, for a period not exceeding four years, for all envelopes, stamped or otherwise, designed for sale to the public, or for use by the Post Office Department, the Postal Service, and other executive departments, and all Government bureaus and establishments, and the branches of the service coming under their jurisdiction, and may contract for them to be plain or with such printed matter as may be prescribed by the department making requisition therefor."

We assume that this statute, like the Act of June 17, 1910, was intended to apply only to the Executive establishments of the Government and would not restrict the Judiciary to the use of the contracts executed by the Post Office Department, but before taking action in the matter we wish to inquire whether your office would take exception to payments which we might make under contracts executed by this office for the purchase of envelopes for the Judiciary. A decision in the matter at your earliest convenience will be appreciated. The act of June 26, 1906, 34 Stat. 476, 39 U. S. C. 355, quoted in your letter, has been held to apply to all Government "departments bureaus and establishments, and the branches of the service coming under their jurisdiction," irrespective of whether they are or are not in the executive branch of the Government.

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In decision of April 9, 1908, 14 Comp. Dec. 674, the Comptroller of the Treasury stated

The Auditor for the State and other Departments has submitted for approval, disapproval, or modification, his decision of March 21, 1908, making an original construction of a statute, as follows:

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"The act of June 26, 1906, requires that the Postmaster-General shall contract for all envolopes 'for use by the Post-Office Department, the postal service, and other Executive Departments, and all Government Bureaus and establishments and the branches of the service coming under their jurisdiction.' The question is whether the Library of Congress is a Government establishment. The Postmaster-General intimates that under his first construction he held that the application of the law was in effect limited to the executive branches, and that the 'establishments' of the act were those which had the executive character. As a matter of classification the Library of Congress is not an executive establishment. Its name indicates its origin and purpose; control of the institution is vested in a joint committee of Congress. But the Library, in late years at least, has ceased to have the character of an intimate adjunct of Congress, and has become more and more a public institution in the larger sense. Moreover, I do not think it was the intention of Congress to limit the Postmaster-General's agency with respect to envelopes upon a principle of technical classification. The objects and proposed benefits of the scheme of purchase are such as to apply no less to the Library of Congress than to the purely executive establishments of the Government. This view is strengthened by the difference in language between the act of June 26, 1906, and the preceding act on the same subject, section 96 of the act of January 12, 1895 (28 Stat., 624). Except as to the term of the contract, the former makes the same general provision, but affects merely 'his own (the Postmaster-General's) and other Departments.' The added language in the latter act is evidence to my mind of an intention to give the law the widest possible application, to put an end to all opportunities for exemption or limitation on purely formal grounds. The word 'establishment,' then, as it stands in the act, must be read in the general sense and with its broad meaning. I am of opinion and decide that the Library of Congress is such an establishment,

The word "Government" in said statute is presumed to have been used in its ordinary meaning. The Library of Congress is an adjunct of Congress and is therefore a Government establishment. It is in my opinion included within the meaning of the clause "all Government bureaus and establishments" as used in the act of June 26, 1906. The Auditor's construction of said ståtute is approved. See, also, 3 Comp. Gen. 945, where, in discussing the said act of June 26, 1906, it was said

It will be noted that this statute requires the Postmaster General to contract for all envelopes for use by all executive departments and all Government bureaus and establishments and the branches of the service coming under their jurisdiction.

In an unpublished decision dated October 18, 1924, A-2683, in connection with the said act of June 26, 1906, it was stated

Furthermore the United States Supreme Court is clearly a Government establishment within the meaning of the provision here under consideration. It is to be noted, too, that in the act of August 7, 1939, 53 Stat. 1223, 28 U. S. C. 444, creating the Administrative Office of the United States Courts, the said Office is specifically designated as "an establishment."

As stated in your letter, it was held in decision of August 6, 1941, B-17617 (21 Comp. Gen. 105), that the act of June 17, 1910, 36 Stat. 531, relating to the procurement of supplies "for the executive departments and other Government establishments in Washington", is operative only in the executive branch of the Government. In the said decision there was cited, among other decisions, 23 Comp. Dec. 599, in which are set forth the reasons for the conclusion that the said act of June 17, 1910, affected only the executive branch of the Government, such reasons being based chiefly on the fact that antecedent legislation had been limited specifically to the executive branch.

Moreover, it is to be noted that the said decision of August 6, 1941, referred to in your letter, covered, also, questions relative to the application of section 3709, Revised Statutes, to purchases made under appropriations for the Court of Claims or other United States courts; and it was held that the said section, requiring advertising in connection with purchases and contracts for supplies and services "in any of the departments of the Government," is applicable to "all activities of the Government not specifically exempted therefrom or otherwise provided for by law." Accordingly, the said decision of August 6, 1941, is not to be regarded in any respect as requiring or supporting the conclusion stated in the penultimate paragraph of your letter, that the act of June 26, 1906, supra, "like the Act of June 17, 1910, was intended to apply only to the Executive establishments of the Government."

Specifically, you are advised that the provisions of the said act of June 26, 1906, are applicable to the Administrative Office of the United States Courts and that envelopes to be obtained by that Office should be obtained in conformity with the requirements of the said act. It is suggested that relief from the difficulty of obtaining envelopes in quantities suitable to your needs might be obtained by referring your specific