546, 537). It was held in the first opinion that the residence and domicile restrictions of that proviso were "applicable to all persons authorized to be appointed in the government service after examination," and were not limited to examinations for appointments required by the civilservice act and rules to be apportioned among the several States and Territories. In the opinion to the Secretary of the Interior, it was held that the proviso referred to “applies to all cases where, by law or regulation pursuant to law, an appointment to a position in the government service can only be made after an examination of the applicant," the inquiry in that case being whether such proviso applied to positions in the government service outside of the city of Washington.

These conclusions were based upon the broad language of the proviso, which in terms covers all examinations for positions in the government service, and is not expressly limited to the apportioned service or the service at Washington.

Since the rendition of those opinions, however, my attention has been called to the extensive nature of the field service of the Government for which examination is required as a condition of appointment, and the inconvenience and expense which the broad application of the proviso would occasion have suggested the inquiry whether, in view of the circumstances attending its enactment, it could have been intended to apply to other than the apportioned service, which is confined to the departments at Washington and the Census Bureau.

I am informed that there are about 200,000 positions in the government service outside of Washington for which examinations are required, as against about 15,000 in the departments here subject to the law of apportionment. It is apparent, therefore, that any inconvenience and expense which will be occasioned by the application of the residence and domicile restrictions to the apportioned service will be greatly increased if they are extended to the field service.

I am further advised that, in many cases, it is much more convenient and less expensive to applicants to be examined

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across the state line in another State, than at the nearest place in their own State where the Civil Service Commission has facilities for the purpose, and that, at points where two cities are located in the same neighborhood, one on the state line in one State and the other in the adjoining State, it has been the practice, in order to economize in the time and number of examiners and in other expenses of an examination, to designate only one of such cities as an examination point for applicants from both States within a convenient radius of that point.

It is also said that if the residence and domicile restrictions are applied generally they will necessarily limit competition, and, in the case of professional, scientific, and technical positions in the government service, many of the persons best qualified would be excluded from the examinations, because, from the nature of their profession and avocation, these persons are peripatetic and are not actually domiciled in any one State for as much as a year at a time.

The impracticability of conducting the examinations for the diplomatic and consular service at any other place than the city of Washington is pointed out in your letter.

In view of the fact that the domicile restriction of the proviso in question is not to be interpreted as requiring the bodily presence of the applicant within the State, during the period of one year before the examination, as held in my opinion to the President above referred to, there will not be as much inconvenience on this score as is apparently anticipated. Yet it is manifest that serious inconvenience and considerable expense would be entailed by the application of the residence restriction to the extensive field service of the Government outside of Washington, and a further study of the proviso in the light of such considerations has led me to reconsider my previous interpretation and to conclude that the proviso is properly to be interpreted as applying only to the examinations for the apportioned service of the Government at Washington. It is true, as pointed out in the opinions above referred to, that the proviso applies to all examinations for admission to the government service, but it applies only in the case

of applicants "from any State or Territory." The use of this phrase is significant and must be taken as referring to those applications where it is requisite that the applicant should be of a particular State or Territory and charged to it under the law of apportionment. This is the case only with respect to appointments in the classified service in the departments at Washington and in the Census Bureau. All that occurred in Congress in connection with the insertion of this proviso in section 7, which is referred to in my former opinions, shows that the protection of the rights of the several States in respect to the apportioned service was the real object thereof. The field service of the Government was not even mentioned. This being so, a construction which would go beyond the evil intended to be remedied and produce apparently unforeseen and untoward results should, upon well settled principles, be avoided. (Dartmouth College v. Woodward, 4 Wheat. 518, 645; Church of the Holy Trinity v. United States, 143 U. S. 457, 459.)

I am therefore of opinion that the proviso in question has no reference to examinations leading to appointments in the diplomatic and consular service which are not in the departments at Washington, and my former opinions on this subject are modified to the extent indicated.

Respectfully,

GEORGE W. WICKERSHAM.

The SECRETARY OF STATE.

PENSIONS HONORABLY DISCHARGED SOLDIERS AND SAILORS TERMS OF DISCHARGE ARE CONCLUSIVE.

In determining the pensionable status of a person who served in the civil war, under the acts of June 27, 1890 (26 Stat. 182), and of February 6, 1907 (34 Stat. 879), the Department of the Interior is concluded by the terms of a discharge granted by the Navy Department as "honorable.” By using the words "honorably discharged." in the acts above referred to, Congress intended to adopt or act upon the actual past discharges as honorable, if of a kind generally so regarded by the War and Navy departments and military men of the branches in question at the time the separation or discharge took place.

In construing these pensions the question to be determined is not what should have been granted but what was granted.

DEPARTMENT OF JUSTICE,

November 16, 1909.

SIR: I have received your request for an opinion concerning pensions under the acts of Congress of June 27, 1890 (26 Stat. 182), and of February 6, 1907 (34 Stat. 879), to persons who served in the civil war. In both of those statutes one "condition" of receiving a pension is to have been honorably discharged." Your question concerns this phase and is as follows:

"Is this department, in determining pensionable status, concluded by the terms of a discharge granted by the Navy Department as honorable?"

It seems that your department or its Pension Bureau has been inquiring into the actual causes of discharge in the way of diseases discreditable to the individual and the like and refusing to be concluded as mentioned.

It is not a simple matter to determine whether a man had or had not a "discharge granted as honorable."

If Congress, when it passed the earlier act, that of 1890, had some fixed definition in mind of an honorable discharge, a definition which would not change with any changing practice or views of the War or Navy departments, or changing views of American military men in general, our inquiry would be what was that congressional definition, and, when found, that would end the matter.

Congress may, however, have had in mind no such fixed definition and have meant that the Navy Department or War Department would have determined at the time of discharging an individual that the discharge or separation from service should be honorable or not, and that the Pension Department should govern itself accordingly, even if one individual had been given an honorable discharge and another, at a later or earlier time, had not, although the facts about their service were the same. If so, as far as such determination took the form of an express honorable discharge, no doubt could well arise as to the views and intent of the military department; but it is not from such express honorable discharges that your difficulty has now arisen.

It is possible that in saying "honorably discharged," Congress intended that the only thing to be considered (as to the naval service) should be the express certificate of honorable discharge given under the following sections of the Revised Statutes taken from the act of March 2, 1855 (10 Stat. 627):

"SECTION 1426. Honorable discharges may be granted to seamen, ordinary seamen, landsmen, firemen, coal heavers, and boys who have enlisted for three years.

"SECTION 1427. Honorable discharges shall be granted according to a form prescribed by the Secretary of the Navy."

The two pension laws to which you refer concern both the army and the navy, and if Congress had its own fixed, unchanging definition of "honorably discharged," of course it was intended to be the same for both services; but if, on the other hand, it had no such fixed definition, there is no apparent reason why it should be held to intend to speak of the honorable discharges of a soldier and of a seaman as existing only in cases where their behaviours in the service were similar. One department might treat one kind of conduct as inconsistent with the allowance of an honorable discharge, and the other not, according to practical considerations and the traditions of the two services. In both services "dishonorable discharge" was given only after a trial by court-martial and as a punishment. In the army, in case of discharge for cause, without court-martial, it was customary to state on the certificate that discharge was in pursuance of an order, giving the number. thereof, and this order must be referred to to learn the specific cause.

For the same service we find in article 4 of the Articles of War, originally article 11, from the act of April 10, 1806, the following language:

"No enlisted man, duly sworn, shall be discharged from the service without a discharge in writing, signed by a field officer of the regiment to which he belongs, or by the commanding officer, when no field officer is present; and no discharge shall be given to any enlisted man before his term of service has expired, except by order of the President, the