merely a provision for carrying it out in the only reasonably conceivable contingency that would require such action. Considering the foregoing, it is my opinion that if either corporation should fail, upon demand by a bona fide and accredited holder, to pay either principal or interest when due, the United States would thereupon become obligated to make such payment and its obligation would not be conditioned upon the institution of any proceeding by the bondholder against the corporation. Respectfully, HOMER CUMMINGS. To the SECRETARY OF THE TREASURY. AMENDMENT OF CIVIL SERVICE RULE VII GOVERNING CERTIFICATION Section 165 R. S., providing that women may, in the discretion of the head of any department, be appointed to any clerkship therein upon the same requisites and conditions prescribed for men, has not been repealed by the Civil Service Act; and the President is without authority under that Act to amend paragraph (a) of section 1 of Civil Service Rule VII, governing certification, by requiring that certification shall be made without regard to sex unless sex is specified in the request and the request is approved by the Civil Service Commission. (See Executive Order No. 6866 of October 5, 1934.) DEPARTMENT OF JUSTICE, SIR: I am herewith returning the proposed Executive order submitted by you under date of September 13, 1934, amending paragraph (a) of Section 1 of Civil Service Rule VII, governing certification. The proposed order eliminates the final sentence of paragraph (a) "Certifications shall be made without regard to sex unless the nature of the duties of the position to be filled are such as, in the opinion of the Commission, can be performed only by men or women as the case may be ", and substitutes there for the sentence "Certifications shall be made without regard to sex unless sex is specified in the request, and the request is approved by the Commission." The present final sentence was inserted in Rule VII by the President on December 23, 1932, upon the recommenda tion of a majority of the Civil Service Commissioners. At the time of the amendment the last sentence provided that "Certifications shall be made without regard to sex unless sex is specified in the request." This rule was based on the provisions of Section 165 of the Revised Statutes, which, as now embodied in Section 33, Title 5 of the United States Code, is as follows: "Women may, in the discretion of the head of any department, be appointed to any of the clerkships therein authorized by law, upon the same requisites and conditions, and with the same compensations, as are prescribed for men.' The Congress has by this statute vested in appointing officers certain discretionary authority. In an opinion of June 28, 1934, the Attorney General advised the President that since the Congress had vested in the Land Bank Commissioner discretionary authority to make appointments without regard to the Civil Service Law and Rules, the President was without authority to control that discretion by placing the positions involved in the classified civil service. so as to require appointments thereto to be made in accordance with the Civil Service Law and Rules. The principle thus stated is applicable to the instant case. Since the present rule transfers to the Civil Service Commission the discretion vested in appointing officers by Section 165 of the Revised Statutes, it and also the proposed amendment, insofar as it makes certifications subject to the approval of the Commission, are invalid unless Section 165 of the Revised Statutes has been repealed by the Civil Service Act of January 16, 1883 (c. 27, 22 Stat. 403). I am of the opinion that it has not been so repealed. Section 165 provides that women may, in the discretion of the head of any department, be appointed to any clerkship therein upon the same requisites and conditions as are prescribed for men. The Civil Service Act authorizes the President to promulgate rules or, in other words, to prescribe the "requisites and conditions" for the admission of persons into the Civil Service of the United States. The Act makes no distinction as to sex but deals generally with persons and positions. This would seem to indicate that the Congress itself did not intend to authorize the President to make any such distinction. In my judgment, the two statutes are consistent and should be read together. This view is supported by the administrative construction of the two statutes which obtained for many years prior to the amendment of Rule VII on December 23, 1932. In view of the foregoing, I suggest that the words of the proposed amendment "and the request is approved by the Commission" be deleted so that the sentence will read as it was prior to the amendment of December 23, 1932, "Certifications shall be made without regard to sex unless sex is specified in the request." I have revised the proposed order to read accordingly, and, with this change, it has my approval as to form and legality. Respectfully, HOMER CUMMINGS. To the ACTING DIRECTOR OF THE BUDGET. RATING REQUIRED FOR MILITARY PREFERENCE WHEN REDUCTIONS IN FORCE ARE MADE-COMPETING EMPLOYEES An employee in the field service of the Department of Agriculture must receive a minimum efficiency rating of 80 to be entitled to a rating of "good" for military-preference purposes when reductions in force are made. A junior veterinarian assigned to Chicago, Ill., station of the Burean of Animal Industry is to be considered as in competition only with other employees at that station. DEPARTMENT OF JUSTICE, SIR: I have the honor to comply with your request of September 14 for my opinion upon the following questions: "(1) If it is administratively decided to reduce the force of junior veterinarians assigned to the Chicago, Illinois, station of the Bureau of Animal Industry, has the Department the right to effect the separation of a junior veterinarian at that point who is entitled to military preference and whose record is rated as good when junior veterinarians who are not entitled to military preference are being retained at various other stations throughout the country? In other words, must consideration be given to all junior veterinarians 144790°-37-vol. 38-9 in the field service, or may such consideration be limited to the Chicago station? "(2) There is also some question as to what constitutes a record which is rated as 'good' for a field employee who is entitled to military preference. Section 1 of the Executive Order of June 4, 1925, states that in the departmental service military-preference employees will be placed at the top of the lists of competing employees in the order of their ratings provided they attained for the last rating period an efficiency rating of not less than 80. It would seem fair to consider field employees on the same basis as departmental employees, but as the two Acts above quoted make no reference to efficiency ratings, it will be appreciated if you will also render an opinion as to whether a military-preference employee in the field service must receive a rating of 80 in order to have a record which is rated as good." The right of military preference in such a case depends upon the statutes and executive orders hereinafter indicated. Act of August 15, 1876, c. 267, 19 Stat. 143, 169 (U. S. C., Title 5, Sec. 37): "That in making any reduction of force in any of the executive departments, the head of such department shall retain those persons who may be equally qualified who have been honorably discharged from the military or naval service of the United States, and the widows and orphans of deceased soldiers and sailors." Act of August 23, 1912, c. 350, 37 Stat. 360, 413 (U. S. C., Title 5, Sec. 648): "The Civil Service Commission shall, subject to the approval of the President, establish a system of efficiency ratings for the classified service in the several executive departments in the District of Columbia * * *. That in the event of reductions being made in the force in any of the executive departments no honorably discharged soldier or sailor whose record in said department is rated good shall be discharged or dropped, or reduced in rank or salary." Executive Order of March 3, 1923, as amended by the Executive Order of March 2, 1929 (Civil Service Rule XII, Par. 5): "5. In harmony with statutory provisions, when reductions are being made in the force, in any part of the classified service, no employee entitled to military preference in appointment shall be discharged or dropped or reduced in rank or salary if his record is good, or if his efficiency rating is equal to that of any employee in competition with him who is retained in the service." Executive Order of June 4, 1925 (Civil Service Commission Report, 1925, p. 115): "The following rules are hereby prescribed to govern the selection of employees for demotion or separation from the departmental service on account of reduction of force. "Employees eligible for military preference: 1. Executive Order of March 3, 1923, will be construed to require that in selecting employees to be demoted or separated on account of any reduction of working forces honorably discharged soldiers, sailors, and marines, and the widows of such, and the wives of injured soldiers, sailors, and marines, who themselves are not qualified for positions in the Government service, will be placed at the top of the lists of competing employees, in the order of their ratings, provided they attained for the last rating period an efficiency rating of not less than 80; and they will be retained in existing status, if their record in respect to deportment, attitude and attendance is satisfactory, in preference to all other persons with whom they are respectively in competition." Previously to the issuance of the last mentioned order (No. 4240), Attorney General Stone had advised the President (34 Op. 159, 161): "The law does not contemplate that the method of determining the efficiency of honorably discharged soldiers and sailors shall be different from the method of determining the efficiency of other persons in the classified service. The ratings or degrees of efficiency are to be determined by the Bureau of Efficiency and the methods by which the Bureau shall reach its determination are within its sound discretion. That discretion cannot be controlled by the courts. Medkirk v. United States, 45 Ct. Cls. 395, 401; Keim v. United States, 33 Ct. Cls. 174; 177 U. S. 290, 295. "When employees in the classified service have been rated as to efficiency, and their comparative degrees of efficiency established, such as 'excellent,' 'good,' 'fair,' or 'poor,' |