he is obligated, even though it be for his benefit, will result in his release; and Held further, That the consent of the surety should be obtained both in the matter of the modification and of the extension of the contract, and that it would be unsafe to rely upon the consent to an extension given in the condition of the bond should the extension be granted under the conditions proposed. 76-400, Sept. 26, 1913.

A supplemental contract providing for the termination of an existing contract on the basis of payment at the contract price for work already performed, each party relieving the other from all liabilities as to the unexecuted part of the contract, may be made without obtaining the consent of the sureties on the contractor's bond. The sureties would not be relieved of liability for labor and materials furnished the contractors for the work covered by the original contract. 165, Jan. 16, 1919.

OFFICIAL BONDS

670. Captain B., Quartermaster Corps, Ship Repair Shop Unit No. 301, Hoboken, N. J., embezzled funds of said organization and also funds of the officers' mess of said organization. He was under bond on which the Maryland Casualty Co. was surety. Embezzlement of any part of the officers' mess does not make the bonding company liable for indemnification, since the officers' mess is not a Government agency. All portions of company funds accumulated from ration savings is public money, for the faithful expenditure and proper accountability of which a surety on the official bond of its legal custodian is liable. Though such ration savings are mingled with other funds of the company, they retain their public character. The bonding company is not liable for misappropriation of the portions of the company fund deriving from other than such public sources. See act of Aug. 8, 1888 (25 Stat. 387). 1919.

123.5, Apr. 28,

RELIEF FROM LIABILITY

Secs.

671. IN GENERAL.

672. CONTRACTORS' BONDS.

673. OFFICIAL BONDS.

674. SURPLUS PROPERTY SALES.

675. USE OF PATENTS.

IN GENERAL

671. Upon the question raised as to the authority of the Secretary of War to surrender a bond, which had been accepted by him in the exercise of his discretion under a statute, upon the city furnishing a bond in a reduced penalty deemed sufficient for the purpose,

Held, in accordance with the practice of the several executive departments, That in the absence of authority from Congress, executive officers have no authority to surrender or release obligations of the United States; that upon the acceptance of the bond the United States acquired certain rights as obligee; and that the principle is that no executive officer, without authority of law, can surrender or waive such rights. While the United States has the same powers in respect to contracts that private persons have (U. S. v. Smith, 194 U. S. 218), the principle is that its officers or agents do not possess plenary powers (8 Comp. Dec. 106), and can not, without authority from Congress, sur72746-32- -21

render or waive the rights of the Government (4 Op. Atty. Gen. 312). While the Secretary of War may, if he deems the security insufficient, require further security, he may not, therefore, without authority of Congress, release security which has been accepted. 12-332, Jan. 3, 1917.

In the absence of statutory authority, an executive officer of the Government may not release the principal or surety to any bond that has been given to and accepted on behalf of the United States. The disability is absolute and applies after the faithful performance of all the conditions for which the bond was given as well as before. The Secretary of War may advise principal and surety that on and after the date the property has been returned to the United States and all discrepancies adjusted, the United States will not thereafter look to the bond as surety for any acts subsequently committed by the principal, thus relieving principal of further premium payments. 168, Nov. 16, 1929.

CONTRACTORS' BONDS

672. A certain contractor seeks the cancellation of its subsisting annual bond executed by a surety company in favor of the United States, for the reason "that at the present time there are no outstanding contracts to which this bond is applicable; and that it is not necessary for them to carry the bond, inasmuch as they have no contracts with the War Department which are covered by it." The contractor asks that the bond be returned to the insuring company, or that notice of its cancellation be sent to the surety. The Secretary of War has no authority to take the requested action. The most that can be done would be to issue instructions that the annual bond be not relied upon as security for any future bids or contracts under the War Department with this contractor, and to advise the principal and surety that such action has been taken. The bond should remain on file with the Government to cover defaults, if any, in the performance of contracts heretofore made with this contractor. 168, July 5, 1919.

A bond accepted by the War Department to insure the performance by a company of its agreement to remove all ties, rails, etc., from an abandoned street railway on a military reservation and restore the roadbed to its original condition, to the satisfaction of the local commander, may not be returned, but the latter may, if satisfied that the condition of the bond has been fulfilled, notify the principal and surety to that effect. 680.44, May 10, 1928.

OFFICIAL BONDS

673. Opinion is requested whether an official bond continues to attach to the acts of a bonded officer after his transfer from the Quartermaster Corps to the Motor Transport Corps. The pertinent clause of the official War Department Quartermaster Corps bond, Form 100B, authorized January 13, 1917, reads: "Now, if the said * during his remaining on duty in the Quartermaster Corps * * "Officers when transferred from the Quartermaster to the Motor Transport Corps cease to be officers "on duty in the Quartermaster Corps," and the conditions of the bond, being strictly construed in favor of the guarantor or surety, do not cover duty in the Motor Transport Corps. If an officer, after transfer, is accountable for public funds or property, a new bond should be required of him, though the original bond remains a valid obligation to cover any defaults which may subsequently be found to have occurred between the date of the execution of the bond and the date of the officer's transfer. 168, Sept. 8, 1919.

Recommendation is made that the official bond of an acting motor transport officer, as security for Motor Transport Corps property, be canceled, the records of the office of the Chief, Motor Transport Corps, showing that the officer is not now accountable for such property. The official bond now in use by disbursing officers of the Army covers the fidelity of the officer from the date of its approval "thenceforth until the date of approval by proper authority of a new official bond in his case or until the Secretary of War shall formally decide that the officer has been assigned to duty, under which assignment he is not accountable for public funds or public property It will be neces

sary for the department to notify the surety company that the Secretary of War has formally decided that the officer has been assigned to duty under which assignment he is not accountable for public funds or property. 168, Oct. 31, 1919.

An officer while serving under an emergency commission as second lieutenant, Field Artillery, executed an official bond, with surety, conditional upon the faithful discharge of his duties and accounting for all public moneys and properties which might come into his hands "at all times during his remaining on duty in the Quartermaster Corps of the United States Army, under said office and under any office to which he may be promoted while on such duty, from and including the date of approval of this bond by the proper authority, thenceforth until the date of approval by proper authority of a new official bond in his case, or until the Secretary of War shall formally decide that the officer has been assigned to duty under which assignment he is not accountable for public funds or public property." He was honorably discharged from his emergency commission and remained entirely out of the service for several months, when he accepted an appointment as second lieutenant, Field Artillery, Regular Army. He refused to sign a so-called "bond consent agreement" that such former bond given by him while serving under his emergency commission should remain in effect. Held, That the officer's discharge from his emergency commission terminated the bond in question and consequently it did not cover his acts as disbursing officer subsequent to the date of his being recommissioned in the Regular Army. 168, Sept. 25, 1926.

SURPLUS PROPERTY SALES

674. On request that a bond in the penal sum of $10,000, given to secure the unpaid balance of the purchase price of a military reservation be canceled, and bond for a lesser amount substituted therefor, liability thereunder having been reduced to $9,000, Held, That the bond may not be canceled, executive officers of the Government being without authority to release obligations due the United States. Held further, That if a new bond for a lesser amount be accepted by the Government and the new bond recites that it covers any losses that may occur subsequent to the date of the original contract, the Government retains its protection under the old bond and may also call upon the sureties of the new bond at its election. 168, Feb. 8, 1928.

USE OF PATENTS

675. The United States became a licensee of the Colt Patent Fire Arms Manufacturing Co. to make, use, and sell certain firearms and their accessories during the continuance of the war with Germany, under a contract which pro vided that the patents and applications upon which the license was granted were not infringements, and that the contractor would protect and indemnify the United States against any suit for infringement by reason of such license,

to the full end of the term for which any suit might be brought thereon, as prescribed by existing statute or law of the United States, and gave bond to insure such indemnity. The contractor requests cancellation of the bond.

Held, That if there is any infringement of other patents than those of contractor by the licensee during the term of the contract, the Government is still liable, and no executive officer of the Government is authorized to cancel a bond admittedly given to save the Government harmless for damages in such an event. 072, Oct. 4, 1921.

SUFFICIENCY

676. The Chief of the Quartermaster Corps submitted the question as to whether a certificate of the clerk of a United States court as to the sufficiency of sureties on bidders' guaranties and contractors' bonds was required to be placed on more than one of the instruments where the contracts are required to be executed in triplicate, or whether it would be sufficient if the certificate should be attached to one number with a reference thereto on the others.

Held, That the affidavit of justification and certificate of sufficiency of sureties to a contractor's guaranty or bond are no part of the instrument (Dig. Op. J. A. G., 1912, p. 195) and that there was no legal objection to requiring the certificate to be placed only upon one number of the guaranty or bond, reference being made thereto on the other numbers. 12-311, June 5, 1913.

677. BORN IN UNITED STATES.

678-684. BORN OUTSIDE CONTINENTAL UNITED STATES.

BORN IN UNITED STATES

677. A man who was born in this country, though of German parents, is a natural-born citizen of the United States. (Fourteenth amendment.) Such person had a double allegiance by birth, but his permanent residence in the United States after attaining his majority indicates an election of United States citizenship. Thus, the American view is that he was an American citizen originally and that he has now no other citizenship. (3 Moore's Dig. Int. Law, 532-539.) Furthermore, it is probable that his residence in this country for 10 years prior to January 1, 1914, resulted in a loss of German citizenship according to the German view. (North German law of June 1, 1870, Sec. 21; German imperial citizenship law of July 22, 1913, Sec. 31.) 014.33, Mar. 23, 1918.

A man was born in the United States, but his parents took him to Germany during his minority and were naturalized there. Before attaining his majority he returned to this country to live, and there was no conduct on his part after be became of age amounting to an election of German citizenship. Held, That he is an American citizen. (Steinkauler's Case, 12 Ops. Atty. Gen. 15, 17; Ludlam v. Ludlam, 25 N. Y. 356, 376; State ex rel. Phelps v. Jackson (Vt. 1907), 65 Atl. 657.) 014.33, Oct. 30, 1918.

Secs.

BORN OUTSIDE CONTINENTAL UNITED STATES

678-680. IN GENERAL.

681. BORN IN GUAM.

682. BORN IN HAWAII.

683. BORN IN PORTO RICO.

684. BORN IN VIRGIN ISLANDS.