"Another form of examination given by the commission does not necessitate the assembling of the competitors for the purpose of undergoing any of the tests. This form of examination consists of careful and exhaustive inquiry and investigation by the commission into the applicant's history, including his educational attainments, the work accomplished by him, his full experience record, and sometimes his physical condition. The commission calls upon applicants for this type of examination to fill out forms upon which they are required to give a complete history of their education, their training, and their business or professional experience, and sometimes to furnish the record of a medical examination described in detail and set forth in the form. In such examinations competitors are sometimes called upon to furnish theses upon subjects connected with the duties of the position for which the examination is held, or copies of original published works. This evidence submitted by applicants constitutes the basis of the commission's examination, supplemented of course by satisfactory corroborative evidence obtained directly by the commission.

"Since the approval of the act of July 2, 1909, competitors have been required, in the assembled examinations, to assemble and take the examinations in their respective States; but in the case of nonassembled examinations, competitors have been required to show that they have been actually domiciled in the State or Territory in which they reside for at least one year previous to the examination, and where a competitor was temporarily absent from his State at the time of filing his application he has not been required to return to such State for the purpose either of filling out his application and making oath to it or of furnishing the other data or information required in con nection with his examination, as above described.

"The question has now arisen, whether the provision of law above quoted does not require that in the nonassembled examinations above described a competitor who is tempo rarily absent from the State or Territory in which he has his residence and actual domicile shall return to such State or Territory for the purpose of filling out and making oath to his application and furnishing such other data as the

commission may call upon him to furnish in connection with his examination. Upon this point we ask the opinion of the Attorney General."

The meaning of the statute in question is not entirely clear, the ambiguity arising from the fact that, while it refers to "all examinations of applicants for positions in the Government service, from any State or Territory," it proceeds to say that they "shall be had in the State or Territory in which such applicant resides," and it appears from the letter of the commission that the nonassembled examination is not had--that is, held-at any particular place. It would seem from the use of the word "had" that Congress had in mind the method of examination referred to in section 3 of the civil service act of January 16, 1883 (22 Stat. 403), which provides that the Civil Service Commission "shall, at Washington, and in one or more places in each State and Territory where examinations are to take place, designate and select a suitable number of persons, not less than three, in the official service of the United States, residing in said State or Territory, * to be members of boards of examiners," and that "such boards of examiners shall be so located as to make it reasonably convenient and inexpensive for applicants to attend before them," and that, "where there are persons to be examined in any State or Territory, examinations shall be held therein at least twice in each year."

* *

At the same time the manifest purpose of the act is to throw further restrictions about the requirement that an applicant for examination or appointment shall be actually domiciled in the State or Territory which he claims as his residence, and to which, under the rule of apportionment, he is to be assigned, and it may be that the statute might originally have been construed to apply to the preparation of papers by one taking the so-called nonassembled exami nation. As it is, however, in view of the practical construction which has been placed upon the statute for some years by the body charged with its administration, I do not feel warranted in holding such construction incorrect.

Respectfully,

TO THE PRESIDENT.

J. C. McREYNOLDS.

PACIFIC GAS & ELECTRIC CO.-VALIDITY OF CONTRACT.

The contract entered into between the United States and the Pacific Gas & Electric Co., in connection with the construction, operation and maintenance of the Salt River reclamation project, neither violates the provisions of the antitrust law of July 2, 1890 (26 Stat. 209), nor the provision of the act of April 16, 1906 (34 Stat. 116), which, in authorizing the Secretary of the Interior to lease surplus power derived from reclamation projects, provides that preference shall be given to municipal uses.

By the terms of this contract the Pacific Gas & Electric Co. surrendered and conveyed all of its rights within the physical limits of the Salt River reclamation project and in lieu thereof the United States agreed to furnish to the company in the city of Phoenix, Ariz., a specified amount of electrical energy generated at its works at the Roosevelt Reservoir at a stipulated sum of money and for a term not exceeding ten years, and the United States further agreed that while serving power to the company under the terms of the contract it would refrain from entering into a general retailing of power to customers in the city of Phoenix, and from furnishing power to any one in said city to be again sold or retailed.

DEPARTMENT OF JUSTICE,

July 25, 1913.

SIR: By his letters of December 20, 1912, and February 26, 1913, your predecessor brought up for the consideration and opinion of the Attorney General certain questions respecting the legality of a contract entered into by the United States, under date of June 22, 1907, with the Pacific Gas & Electric Co., a corporation organized under the laws of the Territory of Arizona. In the letter of December 20, 1912, it is stated:

"The contract in question was executed by a supervising engineer of the United States Reclamation Service and approved by the Acting Secretary of the Interior, in 1907, in connection with the construction, operation, and maintenance of the Salt River reclamation project.

"As recited in the contract itself, and as shown by the records of this department, the Pacific Gas & Electric Co. was the owner of certain water rights in canals within the physical limits of the reclamation project, and, pursuant to the policy of merging all irrigating canals in Salt River Valley in the Government reclamation project, so that

when completed and paid for the water users would control all irrigation works therein, it was deemed necessary to acquire the rights of the electric company. Such an adjustment was reached through the contract in question wherein the electric company surrendered and conveyed to the United States all of its rights and in lieu thereof the United States agreed to furnish to the company in the city of Phoenix, Ariz., a specified amount of electrical energy generated at works of the United States at the Roosevelt Reservoir. For this energy the company obligates itself to pay 1 cents per kilowatt hour for all power furnished and consumed, the receipts there for being credited to the Salt River project, thereby operating to reduce the charges payable by the landowners and irrigators therein. The contract was for a term not exceeding 10 years."

From that letter also I excerpt the following:

"It is to the interest of the United States and other water users in the reclamation project that as large a revenue as possible be derived from power development in the project, and in this respect the contract was believed to be advantageous.

"In connection with the whole question, attention is directed to the fact that the Pacific Gas & Electric Co. is a public-service corporation organized and existing under the laws of Arizona operating under a franchise granted to it by the city of Phoenix, and that the power furnished to the company is in furtherance of enabling it to conform to the requirements of said franchise. It would seem to be within the power of the State or local authorities to proceed against the company for violation of any of the terms of its franchise, and within the power of the State to regulate the rates at which it furnishes power to consumers. (Wilcox v. Consolidated Gas Co., 212 U. S. 19; Stanislaus v. San Joaquin & King's River Canal & Irrigation Co., 192 U. S. 201.)"

Article 11 of the contract is as follows:

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The party of the first part further agrees, while serving power to second party under the terms of this contract, to refrain from entering into a general retailing of power

to customers in the city of Phoenix, Ariz., or from furnishing power to anyone in said city to be again sold or retailed. It is agreed, however, that the party of the first part shall have the right to sell or lease power in the city of Phoenix, Ariz., at any time in blocks of 100 to 500 kilowatts and over, to anyone to be used for manufacturing industries, waterworks or pumping plants."

In the letter of February 26, 1913, it is said that this provision has been regarded by the Reclamation Service as not operative to prevent the furnishing of electric power to the city of Phoenix for lighting purposes" provided the city did not retail the power, but intended to use it only for municipal purposes"; and the Secretary adds:

"The language of article 11 seems clear upon this point and contains no restriction upon the Government except that it shall refrain from entering into a general retailing of power to customers in the city of Phoenix or from furnishing power to anyone to be sold again or retailed but. that the Government shall have the right to sell or lease power in the city of Phoenix at any time in blocks of 100 to 500 kilowatts and over."

It appears, however, from the correspondence, that the validity of the contract had been challenged upon the ground that the restrictive features found in the eleventh article were offensive both to the third section of the antitrust law of July 2, 1890 (26 Stat. 209), denouncing contracts, combinations, or conspiracies in restraint of trade or commerce in the Territories of the United States, and to the provision of the act of April 16, 1906 (34 Stat. 116, 117), quoted below, which, in authorizing the Secretary of the Interior to "lease" surplus power derived from reclamation projects, provides that preference shall be given to municipal uses. In view of these criticisms, your predecessor requested to be advised whether the contract was unlawful, and, if so, what steps could be taken to abrogate it.

Section 7 of the reclamation act of June 17, 1902 (32 Stat. 388-9), provides:

"That where in carrying out the provisions of this act it becomes necessary to acquire any rights or property, the