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count of time lost from venereal diseases and does not the line of duty. While all cases of disease due to misconduct are necessarily not in line of duty, many which are not due to misconduct, or which do not fall within the purview of the act of May 17, 1926, for which there is consequently no stoppage of pay are, however, not in the line of duty for other reasons."

I find no occasion to consider the propriety of the indicated presumption since my conclusion is not affected thereby.

The Judge Advocate General has considered the case to be controlled by an opinion of Judge Advocate General Crowder of December 27, 1913, wherein it was concluded, under similar circumstances, that the disease was the proximate cause of death and that death therefore resulted from misconduct. However, in another similar case Acting Judge Advocate General Kroger reached a contrary conclusion (opinion June 17, 1919), stating that "whether or not the disease treated was due to his misconduct is not material, for such misconduct was not the proximate cause of his death; the proximate cause of his death was acute arsenical poisoning." In this, although he made no reference thereto, he adopted a view previously accepted in the Navy Department.

There is some discussion in the various opinions as to whether a soldier is performing a duty in submitting to the treatment. Judge Advocate General Crowder stated that he was unable to discern any element of duty. The Acting Judge Advocate General of the Navy stated unqualifiedly in an opinion of April 29, 1918, that a member of the naval personnel, in taking the treatment, "was in a duty status and was doing that which was required of him by the law and regulations." Whether or not the taking of the treatment may be considered a "duty" within some particular sense, it is apparent that submission thereto is required and cannot be avoided except, perhaps, through such wilfulness as would be cause for punishment by court martial. The following provisions of Army Regulation No. 40-235 are pertinent:

"Any individual who, having failed to take prophylactic treatment after illicit sexual intercourse, develops venereal

disease as a result of such intercourse will be brought to trial by courtmartial for neglect of duty.

*

"Every case of venereal disease will be promptly subjected to treatment, but not necessarily excused from duty unless, in the opinion of the surgeon, it is considered desirable.

Assuming that the man had been guilty of punishable misconduct, he was subject to such disciplinary measures as might lawfully be taken. He was also subject to the 107th Article of War (Act June 4, 1920, c. 227, 41 Stat. 759, 809; U. S. C., Title 10, Sec. 1579), requiring an enlisted man to serve beyond his ordinary enlistment period in order to make up time lost "through disease or injury the result of his own misconduct." He continued, however, to be a member of the military establishment, subject to its requirements and to the orders of his superior officers.

If committed to the guard house, or to the hospital, and there killed through a mishap his death would not "result from the misconduct which had brought about his presence there at the particular time. (36 Op. 478, 479.) As pointed out in the cited opinion, the word "result" indicates a necessary relation of cause and effect. The same principle was applied in the administration of the statute providing for vocational training of disabled war veterans and providing compensation for death or injury "resulting" from such training. (35 Op. 76; 36 id. 61.)

Attorney General Cushing (7 Op. 149, 164) made the following pertinent observations concerning injuries received and diseases contracted by members of the military establishment while under restraint on charges of misconduct:

"In regard to arrest, again: suppose that on march, in camp or garrison, or on a voyage, an officer is put in arrest on charges. In the first place, those charges may not be substantiated, and then it would be manifestly unjust that the mere fact of his being charged should operate to deprive himself or his family of pension. Or, while he is in arrest, he dies of camp fever or ship fever, and then it is unjust to presume a criminality not proved in the course of law. Or, whether guilty or not, if he die of wounds, casualty, or dis

ease contracted while in arrest, still the death is not the consequence of the arrest, but of the public service. If not dying in arrest, and on trial being convicted and sentenced, that sentence be of death or dismissal for some grave military crime, that of course terminates the question of pension; but if his offence be a light one, with a sentence of reprimand, for instance, and he shall have happened to contract disability or mortal disease while in arrest, as by the hazards of a long march or voyage, it seems not just to add to his legal sentence the serious indirect aggravation of incapacity of pension. All these difficulties are avoided or conciliated by directing inquiry to the question-Was the cause of disability or death, or was it not, an act of his official military duty?"

Attorney General Palmer approved these observations and applied the same principle, when interpreting a later statute in 32 Op. 12, 24.

We may say, from the foregoing, that if a man is confined in the guard house and there contracts a disease which he would not otherwise have acquired the disease is, nevertheless, not to be attributed to the misconduct which induced his confinement; and I perceive no reason for a distinction, in this respect, whether the illness is contracted through an infection, contaminated food, improper medicine, or medicine which the particular patient could not tolerate, as in this instance. A fortiori the principle would apply to confinement in a hospital, where the man has been admitted for treatment, not for punishment.

Your Department appears to recognize that if some fault in the treatment of the patient were established the consequent death would be attributable to the fault, rather than to the illness for which the patient was being treated. Here the apparent situation is that the patient was given treatment which in most cases would be effective but which in his case was highly injurious.

"The arsenobenzene preparations [known in America as arsphenamines] are not tolerated equally well by all patients. In a minute percentage of cases they may cause death by damaging the small vessels of the brain or the

kidneys. Other toxic effects are jaundice, and an inflammation of the skin (either of which may be fatal) and a variety of minor troubles. Serious effects from arsenobenzene injections are, however, far too rare to counteract their very great advantages." (Encyclopaedia Britannica, 14th ed., Article on "Salvarsan.")

Again, if the death had been caused by ptomaine poisoning it would hardly be necessary to establish negligence on the part of the cook in order to warrant a conclusion that the death "resulted" from the poisoning rather than from the "misconduct " which originally set in motion the chain of events; and this, I think, would be no less true if the infected food were specially prepared for the particular patient and peculiarly required because of his ailment. I perceive no reason whatever for taking a different view when medicine, or medical treatment, produces death, as the Board in this case affirmatively found.

I recognize the possibility that in a negligence case one whose act or omission had proximately caused a disease might have to answer for an aggravation flowing from its treatment, but the interpretation of the Act of Congress here involved is not controlled entirely by the principles applicable when determining the measure of damages allowable in such cases. The same principles would be applicable in cases of false arrest and imprisonment, but this consideration did not lead my predecessors to any harsh and narrow view when determining whether disabilities contracted during imprisonment in the army "resulted" from the misconduct which had induced the imprisonment, as indicated by the opinions hereinbefore mentioned.

Considering the foregoing, I have the honor to advise you that, in my opinion, the soldier's death, in the case submitted by you, 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. original documents inclosed with your letter are returned herewith.

Respectfully,

Incl. 482051.

To the SECRETARY OF WAR.

HOMER CUMMINGS.

All

PAYMENT OF LOSSES OF UNITED STATES EMPLOYEES IN UNION OF SOVIET SOCIALIST REPUBLICS DUE TO APPRECIATION OF CURRENCY OF THAT COUNTRY IN RELATION TO THE AMERICAN DOLLAR

Although purchases made by employees of the United States in the Union of Soviet Socialist Republics are paid for with American dollars, nevertheless, by reason of the fact that prices are quoted in terms of, and payable at the rate of exchange for, the theoretical, nonexistent gold ruble, such employees sustain actual losses due to the appreciation of a foreign currency in its relation to the American dollar; and payment of such losses is authorized under the act of March 26, 1934 (Pub. No. 129, 73d Cong.; [48 Stat. 466]), and Executive Order No. 6657-A of March 27, 1934, issued pursuant thereto. Under the provisions of the Act of March 26, 1934, supra, the question as to what constitutes loss thereunder is solely for the determination of the President, and the Comptroller General is without jurisdiction in the matter. (See Executive Order No. 6850 of September 18, 1934.)

DEPARTMENT OF JUSTICE,

September 14, 1934.

SIR: I am herewith transmitting through the Secretary of State a proposed Executive order prepared in the State Department and submitted for my consideration by the Acting Director of the Bureau of the Budget under date of September 12, 1934, amending Section 3 of Executive Order No. 6657-A of March 27, 1934, entitled "Regulations for payment of losses sustained by officers, enlisted men, and employees of the United States in foreign countries due to appreciation of foreign currencies in their relation to the American dollar."

Assistant Secretary of State Moore in his letter of September 11, 1934, to the Acting Director states that the necessity for the proposed amendment is due to several decisions of the Comptroller General of the United States under dates of July 27, August 9, and August 31, 1934 (A-56761), to the effect that Executive Order No. 6657-A does not authorize reimbursement to officers and employees of this Government in the Union of Soviet Socialist Republics for losses sustained on account of the appreciation of local currency in its relation to the American dollar.

The Act of March 26, 1934 (Public No. 129, 73d Congress), pursuant to which the Executive Order was issued, provides: "That there are authorized to be appropriated annually such sums as may be necessary to enable the President, in