under the applicable California statute, California Penal Code 1931 Section 415. Although the statute is a State one, the prosecution may be brought before the commissioner under the statute referred to above.

Approved, June 1, 1934:

OSCAR L. CHAPMAN,

Assistant Secretary.

UTAH RAPID TRANSIT COMPANY AND UTAH IDAHO CENTRAL RAILROAD COMPANY

TRANSPORTATION-COMMON

Opinion, June 5, 1934

CARRIERS

RATES CARRIAGE OF GOVERNMENT

FREIGHT AUTHORITY OF EXECUTIVE DEPARTMENT HEADS.

The head of an Executive Department of the Federal Government is authorized to enter into a contract for transportation of Government freight over the lines of a common carrier at a rate lower than that in the schedule filed with the Interstate Commerce Commission.

TRANSPORTATION-FREIGHT ADVERTISING FOR COMPETITIVE BIDDING-SECTION 3709, REVISED STATUTES-AUTHORITY OF FEDERAL OFFICIALS.

In the carriage of freight by use of railway lines, the provisions of Section 3709 of the Revised Statutes of the United States, requiring advertisement for competitive bidding, have not been held applicable to purchases and other contracts made or entered into by Federal officials,

FAHY, Acting Solicitor:

You [the Secretary of the Interior] have asked for my opinion concerning the validity of a draft of contract proposed to be entered into by the United States with the Utah Rapid Transit Company and the Utah Idaho Central Railroad Company, both corporations of the State of Delaware, in connection with the Ogden River project, Utah.

Two questions arise regarding the validity of the contract; first, has the Secretary of the Interior authority to obtain a rate for transportation of Government freight over the lines of a common carrier which is lower than the rate in the schedule filed with the Interstate Commerce Commission, and second, is the Secretary of the Interior compelled to advertise, pursuant to section 3709, Revised Statutes, and accept the lowest bid for transportation of material by freight?

The project consists of a dam, reservoir, canals, pipe lines, roads and appurtenant works, and the construction will require the movement by freight of a large tonnage of materials and equipment.

The railway line of the Utah Rapid Transit Company, which is a wholly-owned subsidiary of the Utah Idaho Central Railroad

Company, extends for a part of its length through the reservoir site of the principal reservoir of the project and it therefore becomes necessary for the United States to arrange for the acquisition of the right of way and railway lying between the dam and the highest line of flowage. The companies are willing to abandon the line from Black Rock Point, below the dam, to Huntsville, Utah, above the area to be flooded. As partial consideration for the abandonment of the line in the reservoir site the United States agrees that it will ship certain freight required in the construction of the dam and irrigation works over the railroad company's lines at rates fixed in the contract and deemed favorable to the United States. The rates set forth in the contract are more favorable than those which are granted to other shippers, and they have not been fixed by competition, although in some respects competition by transportation with trucks might be possible.

The records in the case indicate that the field officers secured estimates of rates for transportation by truck of the materials that must be transported to the vicinity of the project works and that the rate obtained is actually lower by railway than it would be by truck, with the possible exception of the haul to Ogden from the mouth of the canyon.

The contract provides that the railway company will abandon its lines within the reservoir site in consideration of certain payments to be made. By paragraphs 9 and 10 of the proposed agreement the United States agrees that it will ship the materials used in the construction of the works at rates specified where in the opinion of the contracting officer of the United States it is reasonably and conveniently possible to do so, with due regard to the proper carrying on of the work and to the spirit of the contract. The United States also agrees that materials shipped over the Oregon Short Line Railroad Company line from points north and west of Ogden will be routed over the contractor's line, provided, however, that freight costs are not to be increased by reason of routings under this sentence. By paragraph 10 of the contract, rates for movement of material over the company's lines are set forth in detail.

The right of the United States to contract with a railroad company for rates different from those published and filed with the Interstate Commerce Commission is derived from section 22 of the act of February 4, 1887 (24 Stat. 379-387). This section provides in part as follows:

Sec. 22. That nothing in this act shall apply to the carriage, storage, or handling of property free or at reduced rates for the United States, State, or municipal governments, or for charitable purposes, or to or from fairs and expositions for exhibition thereat, or the issuance of mileage, excursion, or commutation passenger tickets.

This is quoted from the act creating the Interstate Commerce Commission and has been carried into the existing law as part of Section 22, Title 49, United States Code. The Bureau of Reclamation in carrying on its construction work in the western States has made many contracts with railroads in which the rates were less than those filed by the railroad companies with the Interstate Commerce Commission. In the contract dated August 1, 1930, between the United States and the Los Angeles and Salt Lake Railroad Company, a subsidiary of the Union Pacific Railroad Company, the Secretary of the Interior secured an agreement for the transportation of material for Boulder Dam at rates below those established for other shippers for similar materials. It is my opinion that the authority of the Secretary of the Interior to contract for freight rates for moving material is unhampered by the law.

With respect to the second question, concerning the necessity of advertisements to secure competitive bids for moving freight where railroad facilities are available, no court decisions have been found. Section 3709, Revised Statutes, provides as follows:

Sec. 3709. All purchases and contracts for supplies or services, in any of the Departments of the Government, except for personal services, shall be made by advertising a sufficient time previously for proposals respecting the same, when the public exigencies do not require the immediate delivery of the articles, or performance of the service. When immediate delivery or performance is required by the public exigency, the articles or service required may be procured by open purchase or contract, at the places and in the manner in which such articles are usually bought and sold, or such services engaged, between individuals.

This provision of the law has not been considered applicable either by the Comptroller General or the administrative officers in the movement of freight by use of railway lines. It is believed that shipment of goods can be made by rail without advertisement as maximum rates are fixed by competent Federal or State authority. A lesser rate may be obtained by an administrative officer, but the rate cannot be in excess of that fixed by competent authority except for special services rendered (19 Comp. Dec. 725).

It is my opinion that all of the provisions of the proposed contract are valid. The reasonableness of the contract is for administrative determination.

Approved, June 5, 1934:

HAROLD L. ICKES,

Secretary of the Interior and Federal Emergency Administrator of Public Works.

TRANSFER OF ADMINISTRATIVE JURISDICTION OVER BEDLOE'S

ISLAND

Opinion, June 5, 1934

JURISDICTION-CESSION OF LAND BY STATE TITLE OF UNITED STATES-INTERDEPARTMENTAL TRANSFER FOR ADMINISTRATIVE PURPOSES BEDLOE'S ISLAND. The title of the United States to Bedloe's Island, acquired by cession from the State of New York, is not affected by an interdepartmental transfer of that island from the administrative jurisdiction of the War Department to the administrative jurisdiction of the Department of the Interior. JURISDICTION CESSION BY STATE TO UNITED STATES-ADMINISTRATIVE CONTROL REVERTER.

The circumstances that lands ceded by a State to the United States were ceded in contemplation of their devotion to a particular use, and for a considerable length of time were so devoted, do not warrant the inference that upon the termination of such particular use or the substitution of other uses, title to the land reverts to the State, the cession containing no such reservation.

JURISDICTION-CESSION BY STATE TO UNITED STATES-FORCE AND EFFECT OF LEGISLATIVE ENACTMENTS.

Express enactments of a State legislature recognizing jurisdiction in the United States over lands ceded by said State to the United States countervail mere inferences that the State granted only a qualified fee in the lands, under which title thereto would revert to the State in the event said lands were employed for a use not originally contemplated, or their administration transferred to another Federal Department.

FAHY, Acting Solicitor:

You [the Secretary of the Interior] have requested my opinion upon the legal effect of a proposed transfer of Bedloe's Island from the administrative jurisdiction of the War Department to the jurisdiction of the Department of the Interior. This question has arisen as a result of a suggestion made by the Secretary of the Interior to the Secretary of War, under date of November 11, 1933, that they jointly recommend to the President that Bedloe's Island be abandoned by the military and transferred to this Department as an addition to the Statue of Liberty National Monument, which is located upon the island.

The Secretary of War was of opinion that, if the military use of the island should be abandoned and the proposed transfer effected, title to and jurisdiction over the island would become lost to the United States and would revert to the State of New York. For this reason he declined to concur in the proposed recommendation.

It is my opinion that no such loss of title and jurisdiction as the Secretary of War has anticipated would result from the proposed transfer.

By Act of February 15, 1800, the New York Legislature ceded jurisdiction over Bedloe's (sometimes "Bedlow's "), Ellis (sometimes "Oyster ") and Governor's Islands, all located in New York Harbor, to the United States. No limitation was placed upon the cession except a reservation to the State of the right to serve process upon the islands. No mention was made of transfer of title to the United States. However, the subsequent course of legislation in New York reveals numerous confirmations and interpretations of the cession as a cession of title as well as of jurisdiction.

By Act of May 7, 1880, New York ceded to the United States all right and title of the State to the submerged lands "adjacent and contiguous to the lands of the United States [emphasis added]

at Governor's, Bedloe's, Ellis', and David's Islands". It was further provided in the same statute that the cession thus effected should" continue no longer than the United States shall own " [emphasis added] both the uplands and the submerged lands of the said islands. See 1 N. Y. Rev. Stat. (8th ed. 1889) 223.

In 1892 the New York Legislature enacted a "State law" in which miscellaneous cessions to the United States were assembled, classified, and confirmed. See N. Y. Laws 1892, ch. 678. That catalogue of cessions was reenacted in chapter 59 of State law of 1909, which is now chapter 57 of the Consolidated Laws. Section 22 of the State law, as it has existed since 1892, provides:

Title and jurisdiction to the following described tracts or parcels of land have been ceded to the United States by this state on condition the jurisdiction so ceded should not prevent the execution thereon of any process, civil or criminal, issued under the authority of the state, except as such process might affect the property of the United States therein :

*

3. Islands in New York harbor. Three certain islands in and about the harbor of New York, viz.: Bedlow's island and Ellis or Oyster island, bounded on all sides by the waters of the Hudson river, and Governor's island, bounded on all sides by the waters of the East river and Hudson river.

Section 24 reenacts the Act of May 7, 1880, cited above.

It is significant that the State law classifies cessions according to their limitations. Section 20 lists cessions "without reservation "; section 22, cessions "with reservation of right to serve process": section 24, cessions "during ownership of the United States, with reservation of right to serve process"; section 26, cessions “during ownership by the United States and use for public purposes, with reservation of right to serve process "; section 28, cessions "during use for purposes thereof with reservation of right to serve process "; section 32, cessions "during use for purposes thereof with sundry reservations". In view of the inclusion of the cessions of the uplands and submerged lands of Bedloe's Island in sections 22 and 24,