"The result (of this opinion) has been most unfortunate. Guessing contests without number are constantly in operation through the mails," and add:

"It is the settled opinion of the officials of this Department who are at all familiar with the operations of these so-called guessing contests that they are almost as vicious and demoralizing in their effects as drawings or raffles. They constitute a great and growing abuse in themselves, and lead, moreover, to countless direct violations of the law."

If the opinion of my distinguished predecessor be sound it is not important whether these guessing contests are or are not demoralizing in their consequences, or whether they mislead any into the belief that lottery schemes are permissible. Unless plainly forbidden by law, the remedy is with Congress and not with this Department. The only questions, therefore, seem to be, whether the present scheme differs in principle from that upon which Attorney-General Miller's opinion was predicated, or whether, if the two contests be identical in principle, I am prepared to say that my predecessor was in error.

In this connection I may call your attention to an opinion which has apparently escaped your attention, and which was rendered to you by my predecessor, Attorney-General Griggs, on September 4, 1900. In requesting that opinion you then asked him by letter dated October 2, 1899, to review the opinion of Attorney-General Miller, to which allusion has been made. The facts upon which you asked for such review disclosed a similar guessing contest, in which prizes were offered to those who could make the nearest estimate of the majority of the successful candidate for President at the next Presidential election. As this Department then advised you, the scheme was far more vicious in its tendencies than that upon which Attorney-General Miller passed, for the prizes were much larger, and in other respects the scheme had many of the allurements and characteristics of a lottery. Nevertheless, Attorney-General Griggs was unable to distinguish in principle between the two contests, and was of opinion that such an estimate depends upon "cal

culation, foresight, knowledge, inquiry, and information," and that "the trained observer of political events is far more likely to approximate the number than one who has not studied election statistics or past political struggles." He therefore concluded that as it was

"impossible to distinguish the case in principle from that which was the subject of Attorney-General Miller's opinion, and, as the case is not free from doubt, and as questions of doubtful construction of criminal statutes should be resolved in favor of the liberty of the subject, I am constrained to adhere to the opinion of my distinguished predecessor."

I can not see that the present contest differs in principle. It is true that an estimate of the number of paid admissions at the Buffalo Exposition must be, to some extent, dependent upon chance, as an exact estimate is almost impossible. As Attorney-General Miller said:

"In a certain sense and in a certain degree, perhaps, any prediction as to human action may be said to be dependent upon chance--that is to say, it is in some measure dependent upon circumstances, the happening of which can not be anticipated or foretold with any degree of certainty."

But, in view of the fact that experience and study were no inconsiderable factors in making an approximate estimate, he did not think that it was "dependent upon chance" within the meaning of the lottery statutes.

Similarly, Attorney-General Griggs, while appreciating that an exact estimate was beyond the power of human calculation, yet recognized that its accuracy would be affected by "calculation, foresight, knowledge, inquiry and information."

These considerations seem to me to apply equally to an estimate of paid admissions to an exposition. The contestant would necessarily be assisted by a careful inquiry into the conditions which affect the number of admissions, as the population of Buffalo, its transportation facilities, its proximity to populous centers, the prosperity of the times, the attractiveness of the exposition, the interest of the public in it, and other considerations too numerous to be mentioned. Moreover, the estimate could be in part based upon actual

admissions into the exposition prior to the latest day for sending in estimates, and the law of averages would thus be taken into consideration. Such estimate, therefore, while necessarily dependent in many respects upon chance, is likewise affected by the intelligent calculation of a thoughtful observer.

I agree with my predecessors that a fair construction of the words "dependent upon lot or chance" excludes estimates which are based upon mental calculation, even though the factors, which enter into such calculation, may be uncertain and matters of conjecture. The drawing of a lot, or the throw of the die are purely dependent upon chance, for no mental operation can aid in estimating the result. Congress, in my judgement, intended to prevent the distribution of prizes by such means. As penal statutes must be construed strictly, I am unable to reach the conclusion that the giving of prizes as a reward for superior intelligence in estimates, where the human intellect is exercised in making such estimate, is within the purview of the statute. And this conclusion can not be affected by the demoralizing tendencies of such contests, to which you refer. This Department can only execute laws. It can not make them, and the remedy, if any be required by the public interests, must rest with the legislative department. of the Government.

Respectfully,

The POSTMASTER-GENERAL.

P. C. KNOX.

ARMOR PLATE-ROYALTY-HARVEY PROCESS.

The Secretary of the Navy entered into a contract with the Carnegie Steel Company for the furnishing of armor plate, the contract providing that if the Carnegie Company should be “required” to pay royalty for the use of the Harvey face-hardening process in the manufacture of armor plate under its contract, the United States would reimburse it for the amount so paid. The Carnegie Company, by reason of its contract with the Harvey Company, was estopped from denying the validity of the Harvey patent. It used, as it is claimed, the Harvey process in the manufacture of the armor plate, and, hav

ing paid the royalty thereon, presents its claim for reimbursement. The Government denies the validity of the Harvey patent, and contends that no distinctive feature of the Harvey patent was used. A suit is pending in the Court of Claims which will determine these questions. Held:

1. That if the Harvey patent be valid, it may properly be urged that the Carnegie Company, being estopped from denying the validity of the patent, was therefore “required” to pay the royalty.

2. That the Secretary of the Navy should withhold his approval of the claim until the question of the right of the Harvey Company to collect royalty from the Government has been judicially determined in the pending suit.

3. The claim of the Bethlehem Steel Company for reimbursement for royalty paid, being based upon a contract similar to that of the Carnegie Company, the Secretary should likewise withhold his approval of the claim of the Bethlehem Company.

Opinion of March 14, 1901 (ante, p. 422), reconsidered and reaffirmed.

DEPARTMENT OF JUSTICE,

August 23, 1991.

SIR: I have the honor to acknowledge the receipt of your letter of March 29, 1901, in which you return the papers relative to the question of withholding payment upon voucher No. 10, in favor of the Carnegie Steel Company, Limited (hereinafter referred to as the Carnegie Company), as royalty for the use of the Harvey process in the manufacture of nickel-steel armor plate, and in which you state that you return the papers, together with certain additional papers, at the request of the attorney for the Carnegie Company, with the request on your part that I shall reconsider the matter and advise you whether I adhere to the opinion previously expressed by me on March 14, 1901.

I have also to acknowledge the receipt of your letter of August 14, 1901, in which you transmit a letter from the same attorneys, who also represent the Bethlehem Steel Company (hereinafter referred to as the Bethlehem Company), and who now make a similar claim for the approval of a voucher for royalty paid by the Bethlehem Company to the Harvey Steel Company (hereinafter referred to as the Harvey Company), for the use of the Harvey process, and in which they request that these papers be considered by me in connection with the claim of the Carnegie Company above referred to.

As the two claims arise under similar contracts, and are believed to involve substantially the same question, I will dispose of them together.

The doubt suggested in your original request for an opinion was, whether payment could be made "with due. regard for the Government's interests in view of the pending litigation between the Government and the Harvey Steel Company with respect to the validity of these patents." And you, therefore, asked my opinion as to the right of your Department "under all the circumstances to withhold its approval of the voucher referred to." On March 14, 1901, I advised you that you had the right to withhold such approval “until the legal question of the right of the Harvey Steel Company to collect royalty from the Government, involved in the pending suit, should be finally adjudicated."

At the request of the attorneys for the Carnegie Company and the Bethlehem Company, I have carefully reexamined the papers filed with me in both matters, and have heard an oral argument by said attorneys on behalf of their clients.

After due consideration, I adhere to the opinion previously expressed. The right of the claimants to reimbursement depends upon a clause in their contracts, by which it was provided that if they were required to pay royalty for the use of the face-hardening process as applied to armor under this contract, the party of the second part (the United States) will reimburse the party of the first part the amount so paid, provided that such royalty does not exceed onehalf of one cent per pound of the face-hardened armor delivered to the party of the second part under this contract."

The question as to the liability of the United States to make such reimbursement seems to be primarily one of construction, and turns upon the fact whether the claimants were required to pay" the royalties in question. The exact meaning of this expression can only be determined in the light of all the circumstances under which the contract was entered into, and I would not care to express any opinion as to its true interpretation unless a statement of such facts were submitted by you to me. I, therefore, express no opinion as to the liability of the Government to reim

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