The opinion says:

"The contention that section 5 qualifies section 28 so as to make the appointment of a process agent only in the district where the bond is returnable or filed, a compliance with the statute, is contrary to its clear purpose to require the appointment of a process agent in the district where the contract is to be performed.

"Section 5 gives the Government the option of suing in three districts, viz: (1) The district in which the principal office of the company is located; (2) the district in which the office is located where the bond is returnable or filed; and (3) the district in which the principal resided when the bond was executed. Unless the company is required to appoint an agent upon whom process can be served in the district where the principal resides, the third option would be destroyed."

I am therefore of the opinion that the act of August 13, 1894, requires the appointment of a process agent in the district where the principal resides and also in the district where the contract is to be performed.

Respectfully,

Approved:

WADE H. ELLIS, Assistant to the Attorney-General.

GEORGE W. WICKERSHAM.

The SECRETARY OF THE TREASURY.

NAVAL ACADEMY-NOMINATIONS FOR APPOINTMENT TO— ACTUAL BONA FIDE RESIDENCE.

The words "an actual and bona fide resident of the State, congressional district, or Territory in which the vacancy will exist" employed in the act of June 29, 1906 (34 Stat. 578), providing for the nomination of midshipmen for admission to the Naval Academy, require the appointee to be "actually domiciled" in the State where he is appointed. This, however, does not necessarily mean actual physical presence. A naval officer whose home is at Athens, N. Y., but who has for some time past been stationed at Portsmouth, N. H., is a legal resident and voter in Athens, N. Y., which is also the actual bona fide residence of his minor son, notwithstanding the latter has for several years been living with his father and physically present at Portsmouth, N. H.

Similarly, the minor son of an army officer stationed for the last two years at Governors Island, N. Y., who has been physically present and attending school in New York City, is not an actual bona fide resident of the State of New York, but of Virginia, which is the legal residence of his parent, unless he has become entitled to or attempted to establish an actual residence separate and apart from his father.

DEPARTMENT OF JUSTICE,

October 28, 1909.

SIR: I am in receipt of your favor of the 21st instant, in which you transmit a letter from Senator Root which states to you that he is sending to the Bureau of Navigation a recommendation for the nomination of a midshipman in the navy for admission to the Naval Academy in the year 1910, and also the recommendations for first and second alternates. Senator Root says:

"In discharging this statutory duty I have been em-1 barrassed by a doubt as to the true meaning of the provision of the statute that the person appointed must be 'an actual and bona fide resident of the State.' The question. is as to the meaning of the term 'actual resident.' Does it mean something different from legal resident? When a candidate is physically present and living in one State and is a legal resident of another State, which is the State of his actual residence?

"My nominee in chief for the appointment, Mr. Morton Loonis Ring, is the son of a pay director in the navy, and is, I am entirely satisfied, a legal resident of the village of Athens, in Greene County, in the State of New York, where his father is a legal resident and voter. The young man has, however, for several years past been physically present at Portsmouth, N. H., where his father is stationed, and he has been attending school.

"The first alternate whom I have recommended is Mr. Culver Mitcham, a son of Col. O. B. Mitcham, of the Ordnance Department of the Army. Colonel Mitcham has been for the past two years stationed at Governors Island, N. Y., and his son has been physically present and attending school in New York City. Both Colonel Mitcham and his son appear to be, however, legal residents of the State of Virginia.

"It is plain that if one of these young gentlemen answers the requirement of actual residence, the other does not. Whichever one does respond to that requirement, I wish to have appointed. I have been unable to find that there has been any authoritative decision of the question. I beg to suggest that the question be submitted to the Department of Justice for determination."

You transmit to me, in addition, certain documents from the files of the Bureau of Navigation which bear upon the residence of Pay Director Ring, and ask an expression of opinion in accordance with Senator Root's request.

Section 1517, Revised Statutes, provides that

"Candidates allowed for congressional districts, for Territories, and for the District of Columbia must be actual residents of the districts or Territories, respectively, from which they are nominated."

Previous to the act of July 1, 1902 (32 Stat. 686), these congressional nominations were made only by the Representatives from the States and Delegates from the Territories, and provided by the section above quoted; but by the act of 1902, supra, and subsequent acts, Senators are permitted to nominate candidates. Thus the act of June 29, 1906 (34 Stat. 578), provides:

*

*

*

*

*

"Hereafter the Secretary of the Navy shall, as soon as possible after the first day of June of each year preceding the graduation of midshipmen in the succeeding year, notify in writing each Senator, Representative, and Delegate in Congress of any vacancy that will exist at the Naval Academy because of such graduation, or that may occur for other reasons and which he shall be entitled to fill by nomination of a candidate and one or more alternates therefor. The nomination of a candidate and alternate or alternates to fill said vacancy shall be made upon the recommendation of the Senator, Representative, or Delegate, if such recommendation is made by the fourth day of March of the year following that in which said notice in writing is given, but if it is not made by that time the Secretary of the Navy shall fill the vacancy by appointment of an actual resident of the State, congressional dis

trict, or Territory, as the case may be, in which the vacancy will exist, who shall have been for at least two years immediately preceding the date of his appointment an actual and bona fide resident of the State, congressional district, or Territory in which the vacancy will exist * * *"

It is manifest that the main purpose of this requirement of residence is the fair distribution of these appointments among the several States, Territories, congressional districts, and the District of Columbia, and to that end, to prohibit the filling a vacancy in one by a resident of another.

But by the same section (1517 Rev. Stat.) all candidates for admission to the academy must be between the ages of 14 and 18 years, so that the question here is confined to the residence of an infant.

It is well settled that the residence of a minor son is that of his father, and that this continues even after the death of the father, until the minor acquires, in some way, another legal residence. (Mitchell v. United States, 21 Wall. 350, 352.) Therefore, if the father of either of the above-named nominees is a resident of the locality in which one of these vacancies occur or is about to occur, that residence is also the residence of his minor son.

The meaning of the words "an actual and bona fide residence," as used in the proviso of the paragraph of the act of Congress of July 11, 1890, making an appropriation for the expenses of the Civil Service Commission, was considered by Attorney-General Miller in 1891:

"Just what constitutes an actual bona fide residence," he said, "is not always easy of determination. That a man may have an actual bona fide residence in one place, and be bodily absent therefrom for months and even years together, is certainly true. That a Senator or Representative in Congress, or other government official, who leaves his home in one of the States to live in the District of Columbia, or in a foreign country, during his official term, and with the purpose, whenever his public employment ceases, of returning to his original home, is continuously an actual bona fide resident at that home is not doubted.

*

*

*

"In brief, what constitutes actual bona fide residence under this statute, as in other cases, is a mixed question of law and fact to be determined in each instance upon its own peculiar facts. * (20 Op. 60.)

The meaning of the words "actually domiciled" as employed in the act to provide for the Thirteenth and subsequent decennial censuses, approved July 2, 1909, was recently considered by me in giving my opinion to the President upon certain questions presented to him by the Civil Service Commission arising under that act. A proviso in that act required (36 Stat. 3)——

"That hereafter all examinations of applicants for positions in the government service, from any State or Territory, shall be had in the State or Territory in which such applicant resides, and no person shall be eligible for such examination or appointment unless he or she shall have been actually domiciled in such State or Territory for at least one year previous to such examination."

I pointed out that, in my opinion, the proper interpretation of this language was that the applicant must not only show that he resides in the State or Territory where he applies for examination, but that at least for one year previous to such examination he shall have been actually domiciled there; that is to say, that he shall for that period have had his permanent home within that State or Territory, a home adopted at least one year previous to that examination, with the intention of making it his permanent abode, and which intention shall not have been departed from during that period; but that it could not be said, as a matter of law, that actual physical presence at any time within the year preceding the date of application for examination was required to demonstrate actual domicile therein; that there must, of course, have been actual physical presence at some time within the State in order to establish a residence, which presence for such purpose must have been accompanied by an intention to indefinitely reside and have one's home at that place. (27 Op. 546-559.)

In Perrine v. Evans (35 N. J. Law 221, 223) it was said: "Residence is always a place of abode; it never denotes simply the place where a man is, or happens to be."