of April 22, 1898, Congress had authorized the President to raise a volunteer army, and pursuant to the terms of said last-mentioned act he had, by proclamation, called for 100,000 volunteers to serve in the Army of the United States. The clear purpose of the President and of Congress, as evidenced by this legislation and subsequent proceedings, was to form the volunteers, in connection with the regular troops, into an army of the United States for service in the war against Spain. Under this establishment it frequently happens that officers of the Regular Army are assigned to commands above those pertaining to their rank in the regular service. The object of the clause under consideration is undoubtedly to give to officers so serving just and proper pay commensurate with the rank in which they are actually serving in the war forces, instead of the smaller pay allowed to them by law according to their commissions in the regular service in time of peace. It is to be not thought, therefore, that Congress in using the language under consideration intended to make its application less extensive than the general purpose which I have stated.

It would be unjust to interpret the phrase "every officer serving with troops operating against an enemy" as applicable only to operations in the immediate presence or even the near neighborhood of an enemy. It would be equally unjust to restrict its meaning to the operations of an actual campaign, even though the movements of the troops to points of rendezvous before embarkation for hostile territory were counted as properly a part of campaign movements, which unquestionably they are.

I think the clause in question was intended to apply to all instances where the troops of the United States are assembled into separate bodies, such as regiments, brigades, divisions, or corps, for the purpose of carrying on and bringing to a conclusion the war with Spain. If the operations of the troops are with the direct object of assisting in the military measures of the Government for subduing the forces of Spain, they can, within the reasonable intendment of this act, be considered as operating against an enemy, although such operations may not be direct but are in the nature of

necessary component steps, though remote, in one great military objective.

It is not possible to define in advance the exact boundary line to be observed in every instance that may arise. I can only point out in a general way the scope of the provision in question and the principles that ought to govern the War Department in applying it. I deem it proper, however, to refer to a portion of the letter of Paymaster-General Stanton in order to indicate my opinion with reference to the views therein suggested by him.

The Paymaster-General says:

"As yet, although war has been declared to exist between Spain and the United States, there are, in my opinion, with the exception of the troops embarked for the Philippine Islands, no troops, 'operating against an enemy.'

“There is, within our borders, no enemy, within the meaning of the law, for troops to operate against. An army has been called together, and is being drilled, disciplined, and prepared to operate against an enemy, but until that army embarks for a foreign country, or until an enemy appears on our shores, and the army confronts it, it is held that no officer can receive the pay of a higher grade by virtue of anything in the act referred to. Furthermore, it is held that if a portion of an army embark, an officer remaining in this country, discharging the duties of a department commander in preserving the public order within the limits of a command above that of his grade, to which he has been assigned, is not operating against an enemy,' within the meaning of the law; nor is an officer of an inferior grade, who, by reason of the appointment of his superior to a higher grade in the volunteer service, who is operating against an enemy, entitled to the pay of the higher grade unless he be, himself, serving with troops so operating."

If the principles I have above laid down as governing the construction of this law are sound, then it is immaterial whether or not there is within our borders any enemy to operate against. There is an enemy, and whatever military operations are carried on, whether in the United States, or in Cuba, or in the Philippine Islands, or upon the high seas, 7845-VOL 22, pt 1——7

designed as a part of the war measures against Spain, are operations against the enemy. The Army of the United States is just as truly operating against an enemy when en route to a rendezvous, such as Camp Alger, near Washington, or at Tampa, in Florida, as when embarked on transports for a campaign in Cuba. It would be very difficult to make up the pay rolls if it were held that one rate of compensation is due to officers when the enemy confronts them in the field, and a less rate from the very moment that a hostile army has disappeared from their front. The rate of pay upon such a construction as that would differ from day to day. I think, also, that while assembled at camps in the United States such as I have named, any troops of the Army assembled for the present war purposes can properly be considered as operating against an enemy, although their present service is confined to the ordinary routine of camp. life, drill, discipline, and other preparation. The assembling of such troops, their drilling, disciplining, and equipment, while assembled into military bodies, are all a part of the same general war purpose.

I need hardly observe that all service in the Army at the present time is not to be considered as operation against an enemy. Troops and their officers on the Western frontiers, performing the same service as garrisons which is requisite in time of peace, and in no wise considered a part of the army assembled to carry on the war with Spain, would not be within the meaning of the act.

Very respectfully,

The SECRETARY OF WAR.

JOHN W. GRIGGS.

CONTRACTS-DUTIES.

The discretion committed to the Secretary of War with reference to the admission of certain materials free of duty by paragraph 4 of the act of June 6, 1896 (2 Supp. Rev. Stat., 506), is sufficiently broad to embrace and assume such purchases abroad made by contractors as appear to him to be proper.

The question as to what course should be pursued by an Executive Department involves matter of fact upon which the Attorney-General may not have knowledge, and considerations of expediency upon which it is not for him to pass judgment. (21 Opin., 74, followed.)

In the case of a contract entered into by correspondence, the whole of it must be considered and both parties must assent to a provision or condition before either is bound.

When a writing upon its face is couched in terms importing a complete legal engagement, without any uncertainty as to its object or extent, it will be conclusively presumed that the whole engagement was reduced to writing.

While it has been held generally under the statutes applicable to contracts of the Post-Office Department that proposals duly accepted without formal agreement may constitute a contract complete and binding on the Government, this is not the case with contracts for public works and other contracts under section 3477, Revised Statutes. The contract for the construction of gun emplacements on Tybee Island, Georgia, is a formal written contract, and as such merges all previous negotiations and is presumed to express without any uncertainty the final understanding of the parties, and antecedent conversations of previous or contemporary oral agreements regarding it are strictly inadmissible.

Where a contract is duly executed and approved, and the advertisements and specifications are in terms made a part thereof, as in this case, these papers constitute the contract and resort can not be had aliunde. If the proposal as accepted is not attached and made a part thereof in fact, it ought at least, in order to be regarded, be identified and included by appropriate reference.

A parol agreement, while a contract is executory, is not obligatory on the Government.

DEPARTMENT OF JUSTICE,

June 28, 1898.

SIR: I have the honor to acknowledge the receipt of your communication of June 9, in which you state the facts relative to a certain contract entered into with Capt. O. M. Carter, Corps of Engineers, by the Venable Construction Company for the construction of gun emplacements on Tybee Island, Georgia, and with which you inclose the contract in question and the correspondence in connection therewith, with special reference to the claim or request of the said construction company that the duty paid by it on certain foreign Portland cement imported and used to build the gun emplacements be refunded under the provisions of the act of June 6, 1896, paragraph 4 (2 Supp., Rev. Stat., 506); and you request my opinion as to the justness of the claim. of the Venable Construction Company under the facts stated and the documents submitted.

The act aforesaid provides:

"That all material purchased under the foregoing provisions of this act shall be of American manufacture, except in cases when, in the judgment of the Secretary of War, it is to the manifest interest of the United States to make purchases in limited quantities abroad, which material shall be admitted free of duty."

It is to be understood generally as to this provision that the excepted cases permit purchase abroad in limited quantities only, and only when, in the judgment of the Secretary of War, it is to the manifest interest of the United States; and the language of this act and of other similar recent enactments seems to contemplate such purchases of material, to be used in connection with contracts for public works, and like purchases not connected with contracts, by the United States, rather than by the contractors employed. However this may be, it should doubtless be conceded that the discretion committed to you is broad enough to embrace and assume as for or by the United States such purchases abroad made by contractors in cases appearing to you to be proper, one test of propriety consisting (it may be suggested) in the specification and formal inclusion of the foreign material as duty free in the contract, or an application to that end by the contractors antecedent rather than subsequent to the date of the contract or of the importation or of the work done. Furthermore, it appears to involve the definite question of fact (to be further referred to below) whether or not the proposals herein specified the use of foreign Portland cement; and suggests "the course to be pursued by your Department [and] may involve matters of fact of which I have no knowledge, and considerations of expediency upon which it is not for me to pass judgment." (21 Opin., 74.)

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I may, however, point out certain facts which are patent on the face of the papers, and which may aid you in your reconsideration and determination of this case, if you conclude to undertake a reconsideration.

It appears from the original letter of Captain Carter, dated April 24, 1897, that the first information received by him that the foreign Hemmoor cement had been ordered by