1. The act of August 22, 1911, supra, not only contains no such authority, but, as stated in the letter of Mr. Stimson, the act as originally introduced contained sections authorizing the Secretary of War to enter into an agreement for the sale of water power created at the lock and dam on the Black Warrior River, and those sections were subsequently stricken out by Congress.

2. Section 14 of the act of March 3, 1899, supra, authorizes the Secretary of War to grant permission for the temporary occupation or use of any sea wall, bulkhead, jetty, dike, levee, wharf, pier, or other work built by the United States, or any piece of plant, floating or otherwise, used in the construction of any such sea wall, etc. Whatever may be the nature of the right to the surplus water created by a dam, whether it be in the nature of a property right or not, it is clear that it is not included either specifically or by implication within the language of section 14 of the act of March 3, 1899.

Mr. Stimson's letter inclosed a list of the kind of rights and the kind of interests which have been disposed of under the authority of this section. I have examined this list, and the only instances I discover where a lease of water power has been made is at the Muskingum River improvement, Ohio, and at Green River, Ky. The leases of water power on the Muskingum River were expressly authorized by the act of August 11, 1888 (25 Stat. 400, 417). The leases of water power on the Green River, Ky., were expressly authorized by the act of September 19, 1890 (26 Stat. 426, 447). The departmental construction, therefore, of section 14 of the act of March 3, 1899, is against the implication of any right derived from said section to lease water power.

In addition, Congress has in a number of cases, as in the cases of the Muskingum and Green Rivers noted above, expressly authorized the leasing of water power when it thought proper so to do, as appears from a list contained in Senate Document No. 57, Sixty-second Congress, first session.

3. The act of July 28, 1892, supra, authorizes the Secretary of War to lease, for a period not exceeding five years

and revocable at any time, such property of the United States under his control as may not for the time be required for public use and for the leasing of which there is no authority under existing law. I do not think this was intended to include water power belonging to the Government, even regarding it as a property right and the statute as applying to such rights, because there is no act of Congress placing such power generally under the control of the Secretary of War, and, as above pointed out, the lease of water power has always been authorized by specific act of Congress, and in the act of August 22, 1911, Congress expressly refrained from authorizing the Secretary of War to dispose of the particular water power here in question.

Moreover, the act of July 28, 1892, supra, was passed merely for the purpose of giving the Secretary of War power over the property of the Government in his control similar to the power vested in the Secretary of the Treasury by the act of March 3, 1879, section 1 (20 Stat. 383) (S. Rept. No. 171, 52d Cong., 1st sess.). Said act of March 3, 1879, merely gave the Secretary of the Treasury authority to lease at his discretion for a period not exceeding five years "such unoccupied and unproductive property of the United States under his control for the leasing of which there is no authority under existing law" and provided that such leases should be reported annually to Congress. It is entirely clear, in my judgment, that neither of these statutes was intended to apply to the right to use the surplus water created by a dam in a navigable water of the United States.

The act of February 15, 1901, supra, applies to the Secretary of the Interior and confers no authority in any respect upon the Secretary of War.

4. The Agricultural Department appropriation act of March 4, 1911, supra, merely authorizes the grant of easements for rights of way "for electrical poles and lines for the transmission and distribution of electrical power, and for poles and lines for telephone and telegraph purposes,' and evidently, therefore, has no application at all to the

water power created by the dam on the Black Warrior River.

For the reasons briefly stated I am of the opinion that the Secretary of War has no right to enter into an agreement for the lease of the water power created by the dam on the Black Warrior River.

Respectfully,

Approved:

WILLIAM R. HARR,

Assistant Attorney General.

J. C. McREYNOLDS.

The SECRETARY OF WAR.

POSTAL SERVICE-EMPLOYMENT OF TEMPORARY AND AUXILIARY CLERKS AND LETTER CARRIERS.

The authority of the Postmaster General to employ temporary and auxiliary clerks and substitute, auxiliary and temporary letter carriers is dependent entirely upon the appropriations made by Congress for that purpose, and hence he would not be justified in incurring a deficiency in respect to their employment.

DEPARTMENT OF JUSTICE,

May 6, 1913.

SIR: I beg to acknowledge the receipt of your letter of the 3d instant, asking to be advised whether, under the circumstances hereinafter stated, you would be justified in incurring a deficiency in respect to the employment of temporary and auxiliary clerks and substitute, auxiliary, and temporary letter carriers.

Section 5 of the act of August 24, 1912, making appropriations for the service of the Post Office Department for the fiscal year ending June 30, 1913, chapter 389 (37 Stat. 539), provides:

"SEC. 5. That on and after March fourth, nineteen hundred and thirteen, letter carriers in the City Delivery Service and clerks in first and second class post offices shall be required to work not more than eight hours a day: Provided, That the eight hours of service shall not extend over a longer period than ten consecutive hours, and the

schedules of duty of the employees shall be regulated accordingly.

"That should the needs of the service require the employment on Sunday of letter carriers in the City Delivery Service and clerks in first and second class post offices, the employees who are required and ordered to perform Sunday work shall be allowed compensatory time on one of the six days following the Sunday on which they perform such service."

Section 8 of the same act makes provision for the parcelpost service. It provides that fourth-class mail matter shall embrace all other matter, including farm and factory products, not embraced by law in either the first, second, or third class and not exceeding a certain weight or size, etc., and establishes postal zones, fixes delivery rates of postage, etc. That section further provides:

"That the Postmaster General shall provide such special equipment, maps, stamps, directories, and printed instructions as may be necessary for the administration of this section; and for the purposes of this section, and to supplement existing appropriations, including the hiring of teams and drivers, there is hereby appropriated, out of money in the Treasury not otherwise appropriated, the sum of seven hundred and fifty thousand dollars."

any

The act in question also contains the following provisions (37 Stat. 544, 545):

"For temporary and auxiliary clerk hire at first and second class post offices and temporary and auxiliary clerk hire at summer and winter resort post offices, eight hundred and fifty thousand dollars.

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"For pay of substitutes for letter carriers absent with pay, and of auxiliary and temporary letter carriers at offices where city delivery is already established, one million six hundred thousand dollars."

Referring to these provisions you say:

"For the purpose of administering section 5 the estimate for temporary and auxiliary clerk hire for the year 1913 submitted by the Post Office Department was in

creased $500,000 and for auxiliary and temporary carriers $400,000, but no other increases were provided for this purpose.

"No increase was made in these appropriations for administering section 8. However, the appropriation for auxiliary and temporary carriers was supplemented by an allotment of $200,000 from the appropriation of $750,000 allowed for parcel post in the general deficiency act for 1913. The increase of $500,000 for temporary and auxiliary clerk hire to administer section 5 is not sufficient, as it has already required $474,470 and 754 additional clerks. In addition to this amount it was necessary to expend during the quarter ended March 31 from the appropriation for temporary and auxiliary clerk hire approximately $200,000 to administer section 8 and it is estimated that a like amount will be necessary for this purpose for the quarter ending June 30, 1913. The requests already received at the department amount to $117,451, which can not be allowed because of the exhausted appropriation.

"The appropriation for auxiliary carriers is also exhausted. The estimates of postmasters made as of April 1, 1913, covering the additional cost of the service because of the new eight-hour law and the parcel post will require $300,000 to meet ordinary demands until June 30 next.

"It is therefore apparent that under the requirements of sections 5 and 8 it will be necessary for me to incur a deficiency in the appropriations for temporary and auxiliary clerks and substitute, auxiliary and temporary carriers or seriously cripple the service. It is desired to secure your opinion whether, under the circumstances, I am justified in incurring such deficiency."

Section 3679 of the Revised Statutes, as amended by the acts of March 3, 1905 (33 Stat. 1257), and February 27, 1906 (34 Stat. 48, 49), provides:

"SEC. 3679. No executive department or other Government establishment of the United States shall expend, in any one fiscal year, any sum in excess of appropriations made by Congress for that fiscal year, or involve the Government in any contract or other obligation for the future payment of money in excess of such appropriations unless