names in connection with each vacancy. The nominating or appointing officer shall make selection for each vacancy from not more than the highest three names available for appointment on such certification, unless objection shall be made, and sustained by the Commission, to one or more of the persons certified, for any proper and adequate reason, as may be prescribed in the rules promulgated by the Civil Service Commission * * *

"Sec. 10. The Civil Service Commission is authorized and directed to hold an examination, during the next succeeding quarterly period, for any position to which any appointment has been made within the preceding three years, for any person included under section 2 (1), (2), and (3) of this act upon application for examination for any such position.

"Sec. 19. It shall be the authority and duty of the Civil Service Commission in all cases under the classified civil service to make and enforce appropriate rules and regulations to carry into full effect the provisions, intent, and purpose of this act and such Executive orders as may be issued pursuant thereto and in furtherance thereof."

Section 20 makes the provisions of the statute applicable to appointments of postmasters by the President by and with the advice and consent of the Senate.

A consideration of the provisions of the Veterans' Preference Act leads me to conclude that nothing in that act mandatorily requires the recalling of a certificate of eligibles for the purpose of adding the name of a vetrean who became eligible, filed a delayed application, or did not establish his preference until after the certificate was issued, and that the matter is left to regulation by the Commission under section 19 of the act, subject, however, to the implied requirement that any such regulation must be reasonable.

Under one view, which has been rejected by the Chief Law Officer of the Commission, a certificate affecting a postmaster subject to appointment by the President by and with the advice and consent of the Senate might be recalled even up until the very moment of the issuance of the commission; and the same procedure might be repeated again and again as other veterans successively qualified with higher ratings. The administrative difficulties which would inhere in such a procedure would, in my opinion, render it clearly unreasonable

in that it might prevent the office from being filled for long periods of time and thus frustrate the constitutional duty of the President to keep offices filled.

Under the present policy of the Commission, as pointed out above, a certificate of eligibles for appointment to a postmaster position is regarded as subject to recall only if no selection has been reported by the Postmaster General or if a selection previously made is revoked. There is no reason known to me for regarding this as unreasonable. But when the Postmaster General has made his recommendation to the President, or has made an appointment (in cases in which the appointing power is vested in the Postmaster General), I think the matter may be regarded as beyond the power of the Civil Service Commission to affect by any attempted recalling from the Postmaster General of the list of eligibles from which the name of the individual so recommended or appointed was taken.

Respectfully,

TOM C. CLARK.

OPINIONS PUBLISHED OUT OF ORDER

TRIAL OF SPY BY COURT MARTIAL

A German national who had crossed into our territory from Mexico and at the time of his arrest was found "lurking or acting as a spy" was subject to trial by court martial under Article 82 of the Articles of War.

THE SECRETARY OF WAR.

DECEMBER 24, 1919.*

SIR: I have the honor to respond to your request that I review the opinion rendered to the President by my predecessor [31 Op. 356], holding under the facts as they were then made known to him, that a court-martial was without jurisdiction to try Lather Witcke, alias Pablo Waberski, as a spy. It appears that my predecessor acted upon the assumption that Witcke, who came from Mexico, was a Russian national, and that he was arrested immediately upon setting foot on our territory. You now state that Witcke was a German citizen; had crossed into our territory at least three times within twenty-four hours, and was arrested in the town of Nogales about a mile distant from encampments where were stationed officers and men engaged in protecting the border against threatened invasion from the Mexican side.

In my judgment the above facts, coupled with the further fact that Witcke at the time of his arrest was found "lurking or acting as a spy," conferred jurisdiction upon a court martial to try him under Article 82 of the Articles of War [10 U. S. C. 1554]. Of course, I do not undertake to determine whether the record evidence warranted his conviction.

This expression of my views should not be treated as overruling the opinion of my predecessor on the facts which were before him, but merely as holding that under the entirely different statement of facts you now submit, the principles announced in that opinion have no application.

*Released for publication July 29, 1942.

561

The circumstances attending this submission of my views lead me to request that they be treated as strictly confidential, and not made public.

The papers which accompanied your letter are herewith returned.

Respectfully,

A. MITCHELL PALMER.

WAR RISK INSURANCE-LIEN FOR UNPAID PREMIUMS A lien, representing back premiums, established in the reinstatement of a policy of insurance under section 304 of the World War Veterans' Act, as amended (38 U. S. C. 515), is a contingent indebtedness against such reinstated insurance only, to be deducted solely from any settlement under such reinstated policy.

The ADMINISTRATOR OF VETERANS' AFFAIRS.

JULY 27, 1932.*

SIR: I have your letter of January 8, 1932, requesting an opinion on the question whether a lien for unpaid premiums established against a contract of war risk insurance reinstated under section 304 of the World War Veterans' Act is applicable to all United States Government life insurance which a veteran may hold or whether such lien is limited to the reinstatement policy, to be collected only in the event of settlement thereunder.

In the case submitted by you it appears that a policy of war risk term insurance in the sum of $10,000 was issued to John W. Bailey. Effective February 1, 1920, $5,000 of the insurance was converted into a twenty-year endowment policy (K-113,171) in the amount of $2,000, and a thirty-year endowment policy (K-113,172) in the amount of $3,000. The remaining $5,000 war risk term insurance was allowed to lapse.

On April 28, 1927, the veteran applied for the reinstatement of the $5,000 lapsed term insurance under section 304 of the World War Veterans' Act, as amended by the act of July 2, 1926, and the conversion thereof into a five-year convertible term policy. The applications for reinstatement and con

*Released for publication August 13, 1946.

version were approved, and policy K-664,430 was issued effective June 1, 1927. A lien for unpaid premiums in the sum of $352.40 was established against such reinstated and converted policy.

Subsequently the veteran applied for loans on policies K-113,171 and K-113,172, and the question arises as to whether the lien established against the reinstated and converted $5,000 policy is applicable only to such policy or whether it applies to all Government life insurance which the veteran has, thus reducing the loan values of policies K-113,171 and K-113,172.

Section 304 of the World War Veterans' Act, 1924, as amended by the act of July 2, 1926, 44 Stat. 790, 799, and the act of July 3, 1930, 46 Stat. 1001, 38 U. S. C., sec. 515, Supp., provides:

"In the event that all provisions of the rules and regulations other than the requirements as to the physical condition of the applicant for insurance have been complied with an application for reinstatement, in whole or in part, of lapsed or canceled yearly renewable term insurance or United States Government life insurance (converted insurance) hereafter made may be approved if made within one year after the passage of this amendatory Act or within two years after the date of lapse or cancellation: Provided, That the applicant's disability is the result of an injury or disease, or of an aggravation thereof, suffered or contracted in the active military or naval service during the World War: Provided further, That the applicant during his lifetime submits proof satisfactory to the director showing that he is not totally and permanently disabled. As a condition, however, to the acceptance of an application for the reinstatement of lapsed or canceled yearly renewable term insurance, where the requirements as to the physical condition of the applicant have not been complied with, or, for the reinstatement of the United States Government life insurance (converted insurance), the applicant shall be required to pay all the back monthly premiums which would have become payable if such insurance had not lapsed, together with interest at the rate of 5 per centum per annum, compounded annually, on each premium from the date said premium is due by the terms of