view of the many applications and the Secretary's many other duties-there is quite a range. If the Secretary, having examined and disposed of one application, should direct a responsible subordinate to make the same disposition of others of like character, I cannot doubt that this would come within the most exacting view concerning the Secretary's duty; and there would be no difference in principle if the Secretary should merely indicate to the subordinate a rule, or rules, to be followed in their disposition. But, whatever the situation was in the beginning, precedents have become established with the passage of the years following the original enactment and such precedents today undoubtedly play a large part in the disposition of present applications. The searching out and applying of such precedents is, necessarily, the duty of a subordinate. Under the circumstances, the presently proposed delegation in connection with these cases would amount simply to an assignment of the detail of disposing of particular applications according to precedents already established, subject to any exceptions which the Secretary may now find proper or hereafter may become advisable. That this can legally be done is a conclusion required, not only by the necessities of the case, but by a proper appreciation of the true functions of a high executive officer. The theory underlying the vesting in an executive officer of numerous duties, varying in importance, is not that he will personally perform all of them, but rather that he will see to it that they are performed, the responsibility being his and he being chargeable with the result. The accomplishment of this is one of the highest responsibilities of an executive and there is not, and in reason cannot be, any set formula by which it is to be done. The courts recognize this and will presume much in favor of the validity of an act performed by a responsible subordinate, particularly when he purports to act for, by direction of, or in the name of his superior; but there exists, nevertheless, the possibility that a particular act may be examined and rejected, and this is especially true in the case of regulations which have the force of law and bear upon the rights or conduct of private citizens. Such regulations must, in some manner, emanate from you. If a subordinate should draft a regulation which truly reflected your view and wish, I should regard all requirements as fully met, but the difficulty and uncertainty that might attend the establishment of the essential facts strongly suggest the advisability of your personal signing or other unequivocable act of approval. In conclusion, it is my opinion that you may properly delegate to the Assistant Secretaries of Commerce all or any part of the duties and authority vested in the Secretary of Commerce or in the Department of Commerce by the statutes and Executive order mentioned, in accordance with the principles and subject to the practical considerations hereinbefore indicated. Respectfully, HOMER CUMMINGS. ELIGIBILITY FOR ENROLLMENT IN CIVILIAN CONSERVATION CORPS CAMPS OF PERSONS ON PROBATION OR PAROLE 1. Since the inhibition in the act of March 31, 1933, against employment in Civilian Conservation Corps camps of persons convicted of crime and "serving sentence" cannot refer to persons actually incarcerated, it must contemplate suspended sentences, etc., or be rejected as meaningless. 2. The Federal probation system was established to take the place of a former practice of suspending sentence. 3. "Sentence" in its broader import being merely an order in a criminal case, a person on probation or parole is literally serving a sentence and is undergoing a form of "imprisonment," although not in a penal institution. 4. A convicted criminal may be sentenced to reformatory, no less than punitive, measures. 5. Persons on probation or parole are not accepted in the Army, Navy, Marine Corps, Coast Guard, or classified civil service. 6. Persons on probation or parole are not eligible for enrollment in the Civilian Conservation Corps. THE PRESIDENT. MARCH 6, 1936. MY DEAR MR. PRESIDENT: I have your memorandum of December 31, 1935, inclosing for my opinion an inquiry from the Director of Emergency Conservation Work as to the eligibility for enrollment in Civilian Conservation Corps camps of persons on probation. The Civilian Conservation Corps was created pursuant to the authority contained in the act of March 31, 1933 (c. 17, 48 Stat. 22, 23), which reads, in part, as follows: "That for the purpose of relieving the acute condition of widespread distress and unemployment now existing in the United States, and in order to provide for the restoration of the country's depleted natural resources and the advancement of an orderly program of useful public works, the President is authorized, under such rules and regulations as he may prescribe and by utilizing such existing departments or agencies as he may designate, to provide for employing citizens of the United States who are unemployed, in the construction, maintenance and carrying on of works of a public nature in connection with the forestation of lands belonging to the United States or to the several States which are suitable for timber production; the prevention of forest fires, floods and soil erosion, plant pest and disease control, the construction, maintenance or repair of paths, trails and fire-lanes in the national parks and national forests, and such other work on the public domain, national and State, and Government reservations incidental to or necessary in connection with any projects of the character enumerated, as the President may determine to be desirable The President is further authorized, by regulation, to provide for housing the persons so employed and for furnishing them with such subsistence, clothing, medical attendance and hospitalization, and cash allowance, as may be necessary, during the period they are so employed, and, in his discretion, to provide for the transportation of such persons to and from the places of employment. That in employing citizens for the purposes of this Act no discrimination shall be made on account of race, color, or creed; and no person under conviction for crime and serving sentence therefor shall be employed under the provisions of this Act." [Italics supplied.] * * * * The inhibition against employment of persons "serving sentence" cannot reasonably be construed as referring to utilization of the labor of persons actually under confinement in a jail, penitentiary, prison camp, etc. The statute provides for "employing citizens of the United States who are unemployed," and is purposed to relieve distress, not merely to obtain labor for the specified projects. Other statutes provide for the employment of Federal prisoners, and expressly forbid their "hiring out" or employment beyond the prison limits (U. S. C., title 18, secs. 708, 744a et seq., 764, 793, 838). A fortiori "employment" by the United States of unemployed citizens could not extend to employment of persons incarcerated in local prisons for violation of local laws. Therefore, since the rules of construction require that the inhibition against employing persons "serving sentence" must be accorded some effect, it is necessary that the words be interpreted as applying to the serving of sentences otherwise than by confinement in penal institutions, if reasonably possible; and this can be accomplished only by applying the provision to persons on parole or on probation, and to any persons who may be given conditional suspended sentences under State laws. The Federal probation system was established to take the place of a former practice of suspending sentence, held illegal by the Supreme Court. Ex parte United States (242 U. S. 27, 51), United States v. Murray (275 U. S. 347, 357). Probation includes suspending of sentence-and it is unnecessary to treat the latter separately. The Federal Probation Act (March 4, 1925, c. 521, 43 Stat. 1259–1260; U. S. C., title, 18, secs. 724, 727) reads in part as follows: "That the courts of the United States having original jurisdiction of criminal actions, except in the District of Columbia, when it shall appear to the satisfaction of the court that the ends of justice and the best interests of the public, as well as the defendant, will be subserved thereby, shall have power, after conviction or after a plea of guilty or nolo contendere for any crime or offense not punishable by death or life imprisonment, to suspend the imposition or execution of sentence and to place the defendant upon probation for such period and upon such terms and conditions as they may deem best; or the court may impose a fine and may also place the defendant upon probation in the manner aforesaid. The court may revoke or modify any condition of probation, or may change the period of probation: Provided, That the period of probation, together with any extension thereof, shall not exceed five years. "While on probation the defendant may be required to pay in one or several sums a fine imposed at the time of being placed on probation and may also be required to make restitution or reparation to the aggrieved party or parties for actual damages or loss caused by the offense for which conviction was had, and may also be required to provide for the support of any person or persons for whose support he is legally responsible." The Federal Parole Act (June 25, 1910, c. 387, 36 Stat. 819, 821, as amended; U. S. C., title 18, secs. 714-723) provides, insofar as here pertinent, as follows: "That every prisoner who has been or may hereafter be convicted of any offense against the United States and is confined in execution of the judgment of such conviction in any United States penitentiary or prison, for a definite term or terms of over one year, or for the term of his natural life, whose record of conduct shows that he has observed the rules of such institution, and who, if sentenced for a definite term, has served one-third of the total of such term or terms for which he was sentenced, or, if sentenced for the term of his natural life, has served not less than fifteen years, may be released on parole as hereinafter provided." "That if it shall appear to said board of parole from a report by the proper officers of such prison or upon application by a prisoner for release on parole, that there is a reasonable probability that such applicant will live and remain at liberty without violating the laws, and if in the opinion of the board such release is not incompatible with the welfare of society, then said board of parole may in its discretion authorize the release of such applicant on parole, and he shall be allowed to go on parole outside of said prison, and, in the discretion of the board, to return to his home, upon such terms |