upon the President." The association may be employed to hold the title to, or possession of, land and personalty devoted to common use.

However, the foregoing conclusions are subject to the condition that any property conveyed to the cooperative association for common use of the homesteaders will be paid for either by the homesteaders or by the association. I concur in the conclusion of your Solicitor that Congress did not contemplate gratuitites. The statute specifically authorized "loans" and provided that "the moneys collected as repayment of said loans shall constitute a revolving fund to be administered as directed by the President for the purposes of this section." The making of gifts without limit (and if the power exists there is no limit clearly indicated) is repugnant to the idea of a revolving fund.

"5. May the Corporation make a loan to a private industry for operating capital where part of the consideration for such loan will be an undertaking by the borrower to employ the homesteaders so as to supply them with a source of cash income? May the Corporation sell or lease a small tract of land to such an industry? (Some such inducement is frequently necessary to induce an industry to locate near the subsistence homestead community.)"

I agree with the conclusion of your Solicitor that a loan to a private industry for the purpose stated appears to have too remote a relation to "aiding in the purchase of subsistence homesteads " and is, therefore, unauthorized.

With respect to providing a site for such an industry, this land is not subject to the ordinary rules applicable to public land, having been acquired with definite purpose of subsequent alienation, and the public ownership being only a temporary incident in the establishment of a community of privately-owned homesteads. If the presence of an industry within the homestead area is essential to the successful establishment and maintenance of the homestead project, there is implied authority to sell the necessary site. A lease to such an industry would be authorized equally and for like reasons; but with respect to this it appears proper to add that Congress hardly contemplated any arrangement which would leave the United States in the position of landlord during a long-continued and indefinite period.

"9. May the Corporation set aside a small number of homestead tracts to be leased to teachers, social workers, and professional technicians? (It is frequently desirable to include in the community individuals who can render special services, but who do not wish to become permanent homesteaders. Such special services are those which teachers, social workers, agricultural experts, and others, may provide. It would be desirable to secure their residence within the community by leasing homes to them from year to year.)"

This question is controlled by the same principles set forth above in connection with Question No. 5 and is likewise answered affirmatively.

"10. After a community plan has been laid out for the establishment of a subsistence homestead community, may the Corporation convey to the local counties, or dedicate to the public, the following: roads, streets, walks, parks, and parkways, which have been constructed with moneys made available in Section 208? (After such dedication, the expense of maintenance is assumed by the local authorities.)" This question is answered affirmatively. I do not regard such dedication as necessarily representing a gratuity. It more nearly approximates the transfer of a liability, properly assumable by the local authorities. Roads and streets, at least, are indispensable and it is hardly to be supposed that they are to be owned and maintained indefinitely by the United States in a community of private citizens who, as pointed out in the opinion of July 18, 1934 [38 Op. 3], will have the political status of residents of the states and of the subdivisions thereof in which they live, with the right to have their needs for roads, schools, etc., considered by the local authorities in like manner as other citizens.

"11. Should moneys paid to the Corporation by homesteaders as interest on amortization or on advances made by the Corporation, be deposited to the credit of the revolving fund created in Section 208, or should such payments be covered into the Treasury as 'miscellaneous receipts"?"

The Comptroller of the Treasury, in an opinion of Octo ber 21, 1919, 26 Comp. Dec. 295, stated the following rule: "The authority to maintain a revolving fund is authority

144790°-37-vol. 38- 8

There is no pur

to maintain it at its principal * pose disclosed in the authority for a revolving fund that it shall increase its principal. Profits may be so involved in some revolving funds as to be impracticable of such accurate determination as to separate them immediately from the principal, but where the increment is definite and periodic. as a payment of interest, there authority should appear to augment the principal thereby. Such moneys belong to other accounts, and there being none provided aside from miscellaneous receipts, the interest deposited in miscellaneous receipts.'

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*

must be

This rule has also been applied in later cases (1 Comp. Gen. 656; 12 id. 553), and I approve it as applicable here, both because it appears to be supported by sound reason and because it is rather to be presumed that Congress intended a "revolving fund" as theretofore understood.

"12. Where part of the land which has been acquired cannot immediately be used by the Corporation for building or other operations, may such land be temporarily leased by the Corporation? Should the rentals from such leases be deposited to the credit of the revolving fund or covered into the Treasury as 'miscellaneous receipts"?"

There have been numerous instances during many years in which private persons have been permitted to occupy government land, not immediately required for public purposes, by administrative action. (16 Op. 205, 210; 19 id. 628; 22 id. 240, 544.) The Act of May 25, 1926, c. 380, 44 Stat. 630, 634, specifically provided for the temporary renting of improved parcels purchased for ultimate use as public building sites. Section 203 of the National Industrial Recovery Act authorizes the leasing of property acquired in connection with public works projects. Section 208, relating to subsistence homesteads, contains no such express authority, but, as pointed out in the opinion of March 19, 1934, its provisions are broad and general, with strong indication of a purpose to leave the President unrestricted by presumptions which might ordinarily arise from detailed provisions inserted in the Act and limited by its arrangement to other projects. For these reasons I conclude that land purchased for subsistence homesteads sites but not immediately required may be temporarily leased.

The rentals received under such leases would represent definite and periodic increments, under the rule hereinbefore stated, and should be deposited in the Treasury as "miscellaneous receipts."

Respectfully,

HOMER CUMMINGS.

To the SECRETARY OF THE INTERIOR.

CAUSE OF DEATH OF CERTAIN NONCOMMISSIONED OFFICER OF THE ARMY

A soldier suffering from syphilis was admitted to a post hospital and given intravenous injections of neo-arsphenamine and bismuth salicylate at various intervals. The soldier died, and a Military Board of Inquiry found that his death was due to reaction from the neoarsphenamine injected during treatment, and that the treatment was given in a proper manner with the usual safeguards and by proper authority. There was no finding as to how the disease was acquired. Held, the soldier's death was not proximately caused by his own misconduct and did not "result" from such misconduct within the contemplation of the act of December 17, 1919, ch. 6, 41 Stat. 367.

DEPARTMENT OF JUSTICE,

September 10, 1934.

SIR: I have the honor to comply with your request of July 16 for my opinion upon the question hereinafter indicated.

A non-commissioned officer of the army was admitted to the post hospital at Fort Bragg, N. C., on December 17, 1933, and found to be suffering from syphilis. He was given intravenous injections of neo-arsphenamine and bismuth salicylate, and remained in the hospital until January 3, 1934, when he returned to duty. The treatment was then continued at weekly intervals, the last treatment being given on January 12, 1934. Three days later he was readmitted to the hospital and remained there until his death on February 15, 1934.

A Military Board of Inquiry found that the soldier's death was" due to reaction from neo-arsphenamine, the direct result of intravenous treatment undertaken for the purpose of rendering him more fit to perform his military duties," and that "the treatment was given in a proper manner with the usual safeguards and by proper authority." It

also indicated a conclusion, apparently of law rather than of fact, that the man's death was "not the result of his own misconduct." There was no finding as to the manner of acquisition of the disease.

The Judge Advocate General, assuming misconduct origin of the disease, has concluded that the soldier's death was the "result of his own misconduct," within the meaning of the words as used in the Act of December 17, 1919, c. 6, 41 Stat. 367 (U. S. C., Title 10, Sec. 903), and upon this precise question you have asked my opinion.

The Act of December 17, 1919, provides

"that hereafter, immediately upon official notification of the death from wounds or disease, not the result of his own. misconduct, of any officer or enlisted man on the active list of the Regular Army or on the retired list when on active duty, the Quartermaster General of the Army shall cause to be paid to the widow, and if there be no widow to the child or children, and if there be no widow or child to any other dependent relative of such officer or enlisted man previously designated by him, an amount equal to six months' pay at the rate received by such officer or enlisted man at the date of his death. (41 Stat. 367).

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Upon inquiry at your Department, I am informed that it has long been the practice to presume misconduct origin of syphilis unless an affirmative contrary showing is made and that this practice is supported by the following provisions contained in Army Regulation No. 40-1030:

"Unless the patient can show by satisfactory evidence that the primary venereal infection was innocently acquired. all cases of paresis, tabes dorsalis, and other conditions which are unmistakably the result of venereal infections will be recorded as not in line of duty. The inability of the responsible medical officer to prove misconduct in the case, or to obtain information in regard to the primary or secondary symptoms of syphilis, is not sufficient to warrant the opinion that the early or late symptoms resulting therefrom originated in the line of duty.

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"The word 'misconduct' as used in the act of Congress approved May 17, 1926, relates to forfeiture of pay on ac