hundred and thirty-six; and provided further, that the total of such contributions with respect to employment for such one month's period beginning December first, one thousand nine hundred and thirty-six, shall not exceed nine-tenths of one per centum (10 of 1%) of such employer's annual payroll for the calendar year one thousand nine hundred and thirty-six ***" [Italics supplied.]

I see no escape from the conclusion that the above-quoted language of the New Jersey statute is consistent only with the view that the Legislature intended that the month of December, 1936, should be considered as "the first period with respect to which contributions are required," within the purview of the Federal statute; and the legislative intent thus evidenced must prevail, under the established rules of statutory construction.

But even a contrary intention on the part of the Legislature, properly evidenced, would not overcome the fact that the State tax for 1936 was levied only with respect to wages payable in December of that year. Such a tax, although measured by the amount of the yearly payrolls, is not the same as a tax upon all wages paid during the year. The tax was measured by the amount of the annual payroll of each employer upon whom it was levied, but it affected only those persons who were actually employing labor during the month of December, 1936. It did not reach those who had employed labor at other times during the year but had ceased (permanently or temporarily) to be employers prior to December; and their former employees are wholly or partly unrepresented in the contributions made to the fund by employers during the year 1936.

Therefore, I concur in the conclusion of the General Counsel of the Social Security Board that it is not permissible, under statutes such as that of New Jersey, to regard the entire year 1936 as "the first period with respect to which contributions are required" within the purview of Section 903 of the Social Security Act. The time within which benefits can be paid is governed by the time with respect to which the State law requires contributions to be made, and not by the time with respect to which the amounts of

the contributions are to be determined. Any amendment of the State law advancing the time for payment of benefits, therefore, also must make a corresponding change in the time with respect to which contributions are required. Of course, the States may now amend their statutes; but should they undertake to make the taxes retrospectively applicable to all wages actually paid during the entire year 1936, they would encounter the same constitutional objections which, the Chairman states, deterred them from so doing in the first place. Respectfully,

HOMER CUMMINGS.

EFFECT OF PARDON ON STATUTE MAKING PERSONS CONVICTED OF FELONIES INELIGIBLE FOR ENLISTMENT IN THE ARMY

Persons convicted of felonies are ineligible for enlistment in the Army, under sec. 1118 R. S., although pardoned by the President or by the governor of a State.

The interpretation of sec. 1118 R. S., assuming that doubt ever existed concerning it, is now controlled by the administrative construction that has prevailed for half a century.

The SECRETARY OF WAR.

FEBRUARY 23, 1938.1

MY DEAR MR. SECRETARY: Under date of February 4 you requested my opinion as to whether the following statutory provision (U. S. C., title 10, sec. 622; R. S. 1118) applies to one who has been convicted of a felony but is thereafter pardoned by the President or by the governor of a State:

"No insane or intoxicated person, no deserter from the military service of the United States, and no person who has been convicted of a felony shall be enlisted or mustered into the military service."

On June 1, 1897, Attorney General McKenna advised the Secretary of War that it should be presumed that the Congress did not intend this provision to apply to a deserter who had received from the President an unconditional pardon, but this opinion was recalled on June 15, 1897. I men

1 Opinion Jan. 28, 1938, post, p. 559.

tion it because it is referred to in the memoranda submitted with your letter and appears to have received some publicity at the time it was rendered. The Attorney General relied upon the principle declared by the Supreme Court in Ex parte Garland, 4 Wall. 333, 380, that a full pardon "blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence," and he assumed the Congress must have had this in mind when enacting the statute.

Following the recall of the opinion of June 1, 1897, he advised the Secretary (21 Op. 568) that the question of the deserter's right to reenlist could not properly arise so as to require an opinion in the absence of a pardon actually issued. The records of this Department indicate that an application for a pardon, then pending, was denied.

On August 26, 1897, the Secretary submitted another case, involving an application for reenlistment by a deserter who had received a full pardon from the President. In an opinion of February 9, 1898 (22 Op. 36), Attorney General Griggs, who had succeeded Attorney General McKenna, denied the right of the pardoned deserter to reenlist, but based his holding upon the provision of the act of August 1, 1894 (28 Stat. 216; U. S. C., title 10, sec. 623), that "no soldier shall be again enlisted in the Army whose service during his last preceding term of enlistment has not been honest and faithful." He stated his conclusions as follows:

66* * * whilst Congress has no power, by legislation, to abridge the effect of the President's pardon, yet Congress has the right to prescribe qualifications and conditions for enlisted men, and to forbid those not possessing such qualifications, and as to whom such conditions do not exist, to enter the military service.

"So, whilst the President's pardon restores the criminal to his legal rights and fully relieves him of the disabilities legally attaching to his conviction, it does not destroy an existing fact, viz, that his service was not honest and faithful."

His distinction between the legal and factual aspects of a pardoned offense finds support in Hart v. United States, 118

U. S. 62, 66-67, wherein the Supreme Court concluded that the broad language used in Ex parte Garland and other pardon cases did not warrant the inference that the Congress when exercising a constitutional power (providing for disbursement of public moneys) was forbidden to take notice of a fact (that the individual concerned had been a public enemy) involving an offense that had been pardoned. It also accords with the later holding in Carlesi v. New York, 233 U. S. 51, 59, that an offense which is in fact a second offense may be dealt with as such and punished accordingly, under proper statutory provision, notwithstanding that the first offense had been pardoned by the President.

In an opinion of June 16, 1908 (26 Op. 617), Attorney General Bonaparte construed a statute (U. S. C., title 34, sec. 163; R. S. 1420) forbidding reenlistment of deserters in the naval service and concluded that the inhibition did not apply to deserters pardoned by the President. He relied, as had Attorney General McKenna, upon the pronouncements in Ex parte Garland and other pardon cases. Later, in an opinion of February 17, 1909 (27 Op. 178), he advised the President that a pardon could not convert a dishonorable discharge into an honorable discharge and that the individual concerned could not be held eligible for pension under a statute providing pensions for persons "honorably discharged" from the Army and Navy. In this latter opinion, it will be observed, he applied the same reasoning used by the Supreme Court in Hart v. United States and in Carlesi v. New York, and by Attorney General Griggs in the opinion of February 9, 1898.

Acting Attorney General Davis in an opinion of February 15, 1918 (31 Op. 225, 233-234), expressly overruled and rejected the conclusion reached in the opinion of June 16, 1908, and held that the statute forbidding enlistment of deserters in the naval service should receive the same construction previously attributed by Attorney General Griggs to the similar statute governing enlistments in the military service. He went into the matter at some length, dealing with several statutory provisions applicable to the Navy. The following excerpt from the opinion is pertinent:

"The answer depends, I think, upon whether section 1441 is properly to be regarded as imposing punishment for an offense or as merely prescribing a qualification for appointees to office in the Navy.

66*

* An unconditional pardon abates whatever punishment flows from the commission of the pardoned offense, but can not in the nature of things eradicate the factum. which is made a criterion of fitness."

Attorney General Mitchell applied the rule indicated in the foregoing quotation when advising the Director of the Veterans' Bureau on March 17, 1930 (36 Op. 193, 195), that a presidential pardon removed a disqualification to receive benefits under the World War Veterans' Act (43 Stat. 607, 629; id. 1302, 1312; U. S. C., title 38, sec. 555). He pointed out that the disqualification was imposed in a section entitled "Penalties" and was intended as a punishment for an offense in addition to the fine or imprisonment provided for in the same section.

It is stated in the documents submitted with your letter that the statute regarding which you ask my opinion has been consistently construed by the Judge Advocate General of the Army during half a century as prescribing qualifications for enlisted personnel (not as imposing punishment for offenses), and making ineligible for enlistment any person convicted of a felony regardless of subsequent pardon by the President or by the governor of a State. I have been informed, upon inquiry at your Department, that these opinions of the Judge Advocate General have been followed. in the administration of the law without known exception. In the great registration of all male citizens between the ages of eighteen and forty-five for possible military service during the World War under the acts of May 18, 1917, and August 31, 1918 (40 Stat. 76, 955), as I have been further informed by your Department, persons convicted of felonies were placed in the last deferred classification without regard to subsequent pardon, and none in that classification was called for military service.

If it be conceded that the statute relating to enlistments in the military service was open to two possible construc