contract awarded to the second low bidder. In view of the approaching end of the fiscal year 1935, it will be appreciated if this matter can be expedited. The following pertinent papers are attached and it is requested that they be returned with your decision: Specification dated November 3, 1934: Original bids of first and second low bidders; synopsis of bids received; low bidder's letters of April 29 and May 22, 1935; affidavit of May 22, 1935, and estimate sheet signed by E. T. Walters.

Approximately 2 months have elapsed since the bids were opened April 23, 1935, containing certificates of compliance with the applicable code of fair competition as required by Executive Order No. 6640 of March 14, 1934, and in the meantime, May 27, 1935, the Supreme Court of the United States decided that there was no constitutional basis for the codes of fair competition under the National Industrial Recovery Act of June 16, 1933, 48 Stat., 195, et seq., with the result that the National Industrial Recovery Board on June 3, 1935, suspended the requirements of the Executive order of March 14, 1934. In view thereof, there is now no legal basis for requiring a Government contractor to comply with the applicable approved code of fair competition. It would appear to be in the interest of the United States to now reject all bids in this case with readvertisement eliminating the requirement that the bidder submit a certificate of code compliance and agree in the contract to comply with the code in completion of the contract.

Such conclusion renders unnecessary any determination at this time whether the low bidder in this case did in fact make such mistake in the submission of his bid as would justify either reformation or disregard of the bid.

(A-62730)

CONTRACTS-CODE COMPLIANCE-PETROLEUM PRODUCTS

Rejection of a low and otherwise proper bid submitted for delivery of gasoline or other petroleum products to the United States upon the basis that such bidder had been administratively determined to be a violator of some provision of the act of February 22, 1935, 49 Stat. 30, superseding section 9 of the National Industrial Recovery Act declared unconstitutional by the Supreme Court of the United States, is not authorized.

Comptroller General McCarl to the Secretary of the Interior, June 20, 1935:
There has been received your letter of June 8, 1935, as follows:

The Bureau of Reclamation recently advertised for bids for tank car gasoline and among the bids received were two from the Texas Oil Company and the Continental Oil Company, both of which concerns were previously declared to be violators of section 7-A of the National Industrial Recovery Act as embodied in section 7, article II, of the Petroleum Code. In conformity with the provisions of the Executive order of the President dated March 14, 1934, and also in view of your decision regarding violation of codes by bidders, this Department has refused to consider or entertain any bids received from the abovenamed companies.

In view of the recent Supreme Court decision regarding the National Industrial Recovery Act this department desires to be advised whether we would be

justified in continuing the rejection of bids received from companies which have been held to be in violation of codes, or whether award can now be made to these companies, provided their bids are low.

The Petroleum Code as initially issued was based on section 9 of the National Industrial Recovery Act of June 16, 1933, 48 Stat. 200, which was subsequently held to be unconstitutional in an opinion and judgment dated January 7, 1935, of the Supreme Court of the United States in Panama Refining Company, et al, v. Ryan, et al. Thereafter, the Congress in act approved February 22, 1935, attempted to meet the defects in section 9 of the act of June 16, 1933, as pointed out in the Panama Refining Co. case. Whether it has done so remains to be seen in view of the opinion and judgment dated May 27, 1935, of the Supreme Court of the United States in the Schechter case. However, unless and until the act of February 22, 1935, is invalidated or repealed it is to be observed by the administrative and accounting officers of the United States.

However, the Petroleum Code of Fair Competition necessarily fell with section 9 of the act of June 16, 1933, and there is nothing whatever in the act of February 22, 1935, which could be interpreted as reviving such code or as authorizing another code of fair competition to enforce the terms of said act. Section 6 of the act of February 22, 1935, provides a fine of not to exceed $2,000 or imprisonment not to exceed six months or both such fine and imprisonment upon conviction for knowingly violating any provision of said act and section 10 thereof provides that:

SEC. 10. (a) Upon application of the President, by the Attorney General, the United States district courts shall have jurisdiction to issue mandatory injunctions commanding any person to comply with the provisions of this act or any regulation issued thereunder.

(b) Whenever it shall appear to the President that any person is engaged or about to engage in any acts or practices that constitute or will constitute a violation of any provision of this act or of any regulation thereunder, he may in his discretion, by the Attorney General, bring an action in the proper United States district court to enjoin such acts or practices, and upon a proper showing a permanent or temporary injunction or restraining order shall be granted without bond.

(c) The United States district courts shall have exclusive jurisdiction of violations of this act or the regulations thereunder, and of all suits in equity and actions at law brought to enforce any liability or duty created by, or to enjoin any violation of, this act or the regulations thereunder. Any criminal proceeding may be brought in the district wherein any act or transaction constituting the violation occurred. Any suit or action to enforce any liability or duty created by this act or regulations thereunder, or to enjoin any violation of this act or any regulations thereunder, may be brought in any such district or in the district wherein the defendant is found or is an inhabitant or transacts business, and process in such cases may be served in any other district of which the defendant is an inhabitant or wherever the defendant may be found. Judgments and decrees so rendered shall be subject to review as provided in sections 128 and 240 of the Judicial Code, as amended (U. S. C., title 28, secs. 225 and 347).

That is to say, the act of February 22, 1935, provides the punishment and establishes the judicial procedure to be followed in event of the violation of any provision thereof and nowhere therein is there

included any authority of law for officers of the United States to reject a low and otherwise proper bid submitted by any person, firm, or corporation subject to the act because it may be believed that they have violated some provision thereof. In this connection, your attention is invited to the fact that the requirements of Executive Order No. 6646 of March 14, 1934, relative to code compliance have been suspended. See Administrative Orders of May 29 and June 3, 1935, of the National Industrial Recovery Board.

Answering your question specifically, you are advised that the rejection of a low and otherwise proper bid submitted for delivery of gasoline, or other petroleum products to the United States upon the basis that such bidder had been administratively declared to be a violator of some provision of the act of February 22, 1935, is not authorized.

(A-62729)

OFFICERS AND EMPLOYEES-APPOINTMENT-RURAL ELECTRIFICATION ADMINISTRATION

Pursuant to section 3 of the Emergency Relief Appropriation Act of 1935, 49 Stat. 118, approved April 8, 1935, the Administrator of the Rural Electrification Administration and any assistant or deputy administrator authorized to act as head of the establishment in the absence of the Administrator or otherwise, and any State or regional administrators appointed for duty outside of the District of Columbia whose salaries may equal or exceed $5,000 per annum, are required to be appointed by the President by and with the advice and consent of the Senate.

Comptroller General McCarl to the Administrator, Rural Electrification Administration, June 21, 1935:

There has been received a letter of June 8, 1935, from your chief clerk, as follows:

Reference is made to Public Resolution No. 11-74th Congress, section 3, which states that any administrator or other officer receiving a salary of $5,000 or more per annum shall be appointed by the President.

Decision is requested as to whether or not this applies to members of the staff of this Administration appointed by the Administrator and under his supervision.

In this connection your attention is invited to the fact that only the heads of departments or establishments or assistants authorized to act in their stead-or, in certain cases, disbursing officers-are authorized by law to submit questions to this office for decision. But accepting, in this instance, the submission as if made by you, you are advised as follows:

Section 3 of the Emergency Relief Appropriation Act of 1935, approved April 8, 1935, 49 Stat. 118, provides:

Any Administrator or other officer, or the members of any central board, or other agency, named to have general supervision at the seat of Government over the program and work contemplated under the appropriation made in

section 1 of this joint resolution and receiving a salary of $5,000 or more per annum from such appropriation, and any State or regional administrator receiving a salary of $5,000 or more per annum from such appropriation (except persons now serving as such under other law), shall be appointed by the President, by and with the advice and consent of the Senate: Provided, That the provisions of section 1761 of the Revised Statutes shall not apply to any such appointee and the salary of any person so appointed shall not be increased for a period of six months after confirmation.

The Rural Electrification Administration was established by Executive Order No. 7037 of May 11, 1935, which contains the following provisions with respect to the personnel of your Administration:

By virtue of and pursuant to the authority vested in me under the Emergency Relief Appropriation Act of 1935, approved April 8, 1935 (Public Resolution No. 11, 74th Congress), I hereby establish an agency within the Government to be known as the "Rural Electrification Administration ", the head thereof to be known as the "Administrator."

I hereby prescribe the following duties and functions of the said Rural Electrification Administration to be exercised and performed by the Administrator thereof to be hereafter appointed:

To initiate, formulate, achinister, and supervise a program of approved projects with respect to the generation, transmission, and distribution of electric energy in rural areas.

In the performance of such duties and functions, *

I hereby author

ize the Administrator to accept and utilize such voluntary and uncompensated services and, with the consent of the State, such State and local officers and employees, and appoint, without regard to the provisions of the civil-service laws, such officers and employees, as may be necessary, prescribe their duties and responsibilities and, without regard to the Classification Act of 1923, as amended, fix their compensation: Provided, That insofar as practicable, the persons employed under the authority of this Executive order shall be selected from those receiving relief.

It will be noted that, with respect to officers at the seat of Government the statute is applicable to those "named to have general supervision at the seat of Government over the program and work contemplated under the appropriation." As the general supervision over the projects to be administered by your Administration is, by the terms of the Executive order, supra, vested in the Administrator, it would appear that the Administrator, as the Rural Electrification Administration is now constituted, is the only official thereof at the seat of Government that would come within the purview of the above-quoted provision of the statute, but should there be an assistant, or deputy administrator or other officer authorized to act as the head of the establishment either in the absence of the Administrator or otherwise, any such officer, if to be paid a salary at the rate of $5,000 or more per annum under the appropriation made in the said act of April 8, 1935, would have to be appointed by the President, by and with the advice and consent of the Senate.

Should State or regional administrators under your Administration be appointed for duty outside of the District of Columbia, they, also, would be subject to the provisions of the above-quoted provision of law if their salaries equal or exceed $5,000 per annum.

7556°-35-59

(A-61600)

COMPENSATION-DOUBLE-RETIRED MARINE CORPS OFFICER HOLDING STATE OFFICE

After the Federal funds loaned or granted to a State under authority of section 1 of the Emergency Relief Appropriation Act of 1935, dated April 8, 1935, are receipted for by the State they become State funds, and in the absence of a condition of the loan or grant specifically prescribed to the contrary, there would be no Federal law precluding a retired Marine Corps officer from holding an office or position created by a State, the salary of which is paid from the funds loaned or granted by the Federal Government. Comptroller General McCarl to the Secretary of the Navy, June 25, 1935:

There has been received your communication of April 23, 1935, forwarding for consideration the following request for decision dated April 16, 1935, from the Paymaster General of the United States Marine Corps:

1. Reference is made to the provisions of section 212 of the Economy Act of June 30, 1932 (47 Stat. 406), reading as follows:

"(a) After the date of the enactment of this act, no person holding a civilian office or position, appointive or elective, under the United States Government or the municipal government of the District of Columbia or under any corporation, the majority of the stock of which is owned by the United States, shall be entitled, during the period of such incumbency, to retired pay from the United States for or on account of services as a commissioned officer in any of the services mentioned in the Pay Adjustment Act of 1922 (U. S. C., title 37), at a rate in excess of an amount which when combined with the annual rate of compensation from such civilian office or position, makes the total rate from both sources more than $3,000; and when the retired pay amounts to or exceeds the rate of $3,000 per annum such person shall be entitled to the pay of the civilian office or position or the retired pay, whichever he may elect. As used in this section, the term 'retired pay' shall be construed to include credits for all service that lawfully may enter into the computation thereof.

"(b) This section shall not apply to any person whose retired pay plus civilian pay amounts to less than $3,000; Provided: That this section shall not apply to regular or emergency commissioned officers retired for disability incurred in combat with an enemy of the United States."

2. A question has been presented to this office as to whether a retired officer of the Marine Corps, retired for causes other than disability incurred in combat with an enemy of the United States, whose retired pay does not exceed $3,000, per annum, may receive compensation for civil employment on a State project which is financed in whole or in part from funds allocated to the State by the Federal government under the recently enacted work-relief act, to the extent that his retired pay when added to his civil compensation may exceed $3,000, per annum.

3. The ruling of the Comptroller General, in decision of February 10, 1934 (A-53436), has been noted in this connection, but there is a doubt as to the similarity of circumstances. It is accordingly recommended that a decision by the Comptroller General be requested on the question presented.

* *

Section 1 of the Emergency Relief Appropriation Act of 1935, dated April 8, 1935, 49 Stat. 115, provides in part as follows: this appropriation shall be available for the following classes of projects, (g) loans or grants, or both, for projects of States, Territories, Possessions, including subdivisions and agencies thereof, municipalities, and the District of Columbia, and self-liquidating projects of public bodies thereof, where, in the determination of the President, not less than twenty-five per centum of the loan or the grant, or the aggregate thereof, is to be expended for work under each particular project, $900,000,000;