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to inconsistency or injustice.” Ford v. United States, 273 U. S. 593, 612. “It is not of universal application, and when to apply it would be to defeat the accomplishment of the manifest purpose of the act, and to prevent the attainment of the end for which the act was passed, we certainly must decline to be governed by it.” City of New York v. Davis, 7 F. (2d) 566, 575. It is never applied when that which is expressed is merely declaratory of existing law; but only when it is creative of new law, or in derogation of existing law. Straus v. Yeager, 48 Ind. App. 448; 93 N. E. 877, 881; Yardley & Co., Ltd., v. United States, 22 C. C. P. A. 390; Barbat v. Allen, 7 Exch. 608; Sutherland on Statutory Construction, 2d Ed., section 491; Maxwell on Interpretation of Statutes, pp. 547, 548. It is never invoked when to do so would contradict the public policy of the sovereign. Forsythe v. Paschal, 34 Ariz. 380; 271 Pac. 865.

The exemption of contracts with the Government from the provisions of section 217 and Title I of the Act does not create any new law. Such contracts would be exempt without any express statement in the Act to that effect. The exemption is therefore merely declaratory of the law as it already existed, and is not creative. Moreover, to apply the rule in this case, thereby making the provision of section 218 applicable to contracts with the Government, would not only be in derogation of the rights of the Government, but would also be contrary to the public policy of the United States as expressed by the Congress in various statutes requiring that all Government contracts, except in cases of emergency, be let to the lowest responsible bidder after proper advertising. This policy of the Government with respect to contracts is not to be lightly passed over, and certainly it should not be cast aside unless the Congress by clear expression so directs.

The purpose of the Motor Vehicle Act, expressly stated therein, is to regulate transportation by motor carriers in such manner as to foster, promote, and protect interstate and foreign commerce by motor carriers, and to prevent in connection therewith unreasonable charges and unjust discriminations resulting in undue preferences or advantages and unfair or destructive competitive practices. It is not

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necessary for such purposes that section 218 be binding upon the Government. The unreasonable charges, unjust discriminations, undue preferences, and unfair destructive competitive practices sought to be prevented relate entirely to private shippers. As was said by the Supreme Court in Nashville Ry. v. Tennessee, 262 U. S. 318, 323, in discussing the analogous requirements contained in the Interstate Commerce Act, “the grant of a lower rate government

may benefit the government without subjecting to prejudice any person, locality or class of traffic.” Again, in Emergency Fleet Corp. v. Western Union, 275 U. S. 415, 425, the Court, discussing the same principal•as related to telegraph rates, said:

"It may be doubted whether the prescribed rule requiring equality of treatment would ever be violated by giving to the Government provisional rates.”

Moreover, to hold that section 218 is applicable to Government contracts would give rise to an inconsistency. One of the expressed purposes of the act is to prevent unjust discrimination. It would indeed be an anomaly to hold that the Congress intended to make the general purposes of the Act, including the purpose to prevent unjust discrimination, relate to contracts with the Government as well as to contracts with private shippers, and also to hold that it intended by section 218 of the act to deny to contract carriers by motor vehicle the same freedom in making contracts with the Government that common carriers by motor vehicle under the proviso in section 217, expressly permitted to enjoy. Such a paradox should not be assumed from the mere fact that the Congress in section 217 and Title I of the Act inserted a provision which was merely declaratory of existing law.

It is my opinion, therefore, that the provisions of section 218 do not apply to contracts with the Government, and that contract carriers by motor vehicle may quote to the Government lower rates than those contained in their schedules on file with the Interstate Commerce Commission. Respectfully,

HOMER CUMMINGS. To the SECRETARY OF WAR.

are,

AUTHORITY TO DESIGNATE AN ACTING GOVERNOR OF

PUERTO RICO-DELEGATION OF STATUTORY POWERS

The power of appointment conferred by statute cannot be delegated

without statutory authority. Although every reasonable presumption of validity is to be indulged

with respect to the performance by the head of a department of a duty imposed upon the President, nevertheless, the President cannot, without statutory authority, delegate a discretionary duty, relieving himself of all responsibility, so that the perform

ance of the duty will not be his act but wholly the act of another. The power of designating, under the Organic Act of Puerto Rico, an

Acting Governor of Puerto Rico is properly to be exercised through the head of the department charged with the administration of Puerto Rican affairs, but in such manner that the designation will be, in effect, that of the President rather than that of the head of the department.

DEPARTMENT OF JUSTICE,

April 24, 1936. Sir: I have your memorandum of April 22, 1936, requesting my recommendation with respect to the suggestion that you authorize the Secretary of the Interior, or in his absence the Acting Secretary of the Interior, to designate the Acting Governor of Puerto Rico from time to time under the following provision of the Organic Act (U. S. C., Title 48, Sec. 772):

“The President may from time to time designate the head of an executive department of Puerto Rico to act as governor in the case of a vacancy, the temporary removal, resignation, or disability of the governor, or his temporary absence, and the head of the department thus designated shall exercise all the powers and perform all the duties of the governor during such vacancy, disability, or absence.”

“Designate” is sometimes used as synonymous with “appoint” (County of Santa Barbara v. Janssens, 177 Cal. 114, 118; Cunio v. Franklin County, 285 S. W. 1007, 1008; People v. Fitzsimmons, 68 N. Y. 514, 519), and it has been held that the power of appointment conferred by statute cannot be delegated without statutory authority (21 Op. 355, 356; 29 id. 273, 274). The statute does not expressly authorize you to delegate the power to designate an Acting Governor, differing in this respect from some other statutes

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under which the Executive has delegated the power to make appointments to office.

In my opinion to you under date of June 16, 1934 (37 Op. 570), I concluded that the Governor of the Virgin Islands was authorized to designate an Acting Governor of the Virgin Islands, his designation, however, being expressly approved by the President. The statute there involved differs materially from the provision in the Organic Act of Puerto Rico. Furthermore, it has been judicially determined that an appointment made by a subordinate officer with approval of a superior may be regarded as an appointment by the latter. United States v. Hartwell, 6 Wall. 385, 393-394.

It is manifestly impossible for the President to execute every duty, and every detail thereof, imposed upon him by the Congress. The courts have recognized this and have further recognized that he usually and properly acts through the several executive departments. Every reasonable presumption of validity is to be indulged with respect to the performance by the head of a department of a duty imposed upon the President and executed by the department head ostensibly in behalf of the President. Nevertheless, the authorities indicate that the President cannot, without statutory authority, delegate a discretionary duty, relieving himself of all responsibility, so that the duty when performed will not be his act but wholly the act of another. Williams v. United States, 1 How. 290, 297; Runkle v. United States, 122 U. S. 543, 557; United States v. Fletcher, 148 U. S. 84, 88; French v. Weeks, 259 U. S. 326, 334.

The power of designating from time to time an Acting Governor of Puerto Rico is quite properly to be exercised through the head of the department charged with the administration of Puerto Rican affairs (now the Department of the Interior), but in such manner that the designation will be, in effect, that of the President rather than of the head of the department; and this course, as I understand it, has been followed in the past. The 'e is no prescribed formula for accomplishing the result.

The recommendation now before you is that Dr. Padin, Commissioner of Education of Puerto Rico, be designated as Acting Governor during the present absence of the Governor. I respectfully suggest that there would be no legal objection to the designation by you of Dr. Padin, or the present head of some other executive department of Puerto Rico, to act as Governor upon all occasions of the Governor's absence hereafter occurring, until otherwise ordered and except as other designations may be made from time to time in particular instances.

In the meantime, since the matter is urgent, I respectfully suggest, if action has not already been taken, that you designate Dr. Padin to act during the present absence of the Governor or that you specifically direct the Secretary of the Interior to so designate him.

The letter of April 21, 1936, from the Secretary of the Interior is returned herewith. Respectfully,

JOSEPH B. KEENAN,

Acting Attorney General. To the PRESIDENT.

CONDITIONS PRECEDENT TO EXPENDITURE OF APPROPRIATION FOR SETTLEMENT OF INDEBTEDNESS AGAINST PERSHING HALL

An assurance or commitment of the American Legion, Inc., to the

effect that it will assume the duties of maintaining and perpetuating Pershing Hall, Paris, France, is not a condition precedent to the expenditure of the funds appropriated by the Act of August 12, 1935, c. 508, 49 Stat. 571, for the settlement of the indebtedness against the said Hall.

DEPARTMENT OF JUSTICE,

May 6, 1936. SIR: Reference is made to the letter of April 23, 1936, signed by Acting Secretary of the Treasury Taylor, in which you request my opinion on the question whether some assurance or commitment of the American Legion, Inc., to the effect that it will undertake the duties of maintaining and perpetuating Pershing Hall, Paris, France, is a necessary condition precedent to the expenditure of the fund appropriated by the Act of August 12, 1935, for the settlement of the indebtedness against Pershing Hall.

The Act of June 28, 1935, ch. 323, 49 Stat. 426, hereinafter referred to as the authorizing Act, provides :

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