tion it because it is referred to in the memoranda submitted with your letter and appears to have received some publicity at the time it was rendered. The Attorney General relied upon the principle declared by the Supreme Court in Ex parte Garland, 4 Wall. 333, 380, that a full pardon "blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence," and he assumed the Congress must have had this in mind when enacting the statute.

Following the recall of the opinion of June 1, 1897, he advised the Secretary (21 Op. 568) that the question of the deserter's right to reenlist could not properly arise so as to require an opinion in the absence of a pardon actually issued. The records of this Department indicate that an application for a pardon, then pending, was denied.

On August 26, 1897, the Secretary submitted another case, involving an application for reenlistment by a deserter who had received a full pardon from the President. In an opinion of February 9, 1898 (22 Op. 36), Attorney General Griggs, who had succeeded Attorney General McKenna, denied the right of the pardoned deserter to reenlist, but based his holding upon the provision of the act of August 1, 1894 (28 Stat. 216; U. S. C., title 10, sec. 623), that "no soldier shall be again enlisted in the Army whose service during his last preceding term of enlistment has not been honest and faithful." He stated his conclusions as follows:

((* * * whilst Congress has no power, by legislation, to abridge the effect of the President's pardon, yet Congress has the right to prescribe qualifications and conditions for enlisted men, and to forbid those not possessing such qualifications, and as to whom such conditions do not exist, to enter the military service.

"So, whilst the President's pardon restores the criminal. to his legal rights and fully relieves him of the disabilities legally attaching to his conviction, it does not destroy an existing fact, viz, that his service was not honest and faithful."

His distinction between the legal and factual aspects of a pardoned offense finds support in Hart v. United States, 118

U. S. 62, 66-67, wherein the Supreme Court concluded that the broad language used in Ex parte Garland and other pardon cases did not warrant the inference that the Congress when exercising a constitutional power (providing for disbursement of public moneys) was forbidden to take notice of a fact (that the individual concerned had been a public enemy) involving an offense that had been pardoned. It also accords with the later holding in Carlesi v. New York. 233 U. S. 51, 59, that an offense which is in fact a second offense may be dealt with as such and punished accordingly, under proper statutory provision, notwithstanding that the first offense had been pardoned by the President.

In an opinion of June 16, 1908 (26 Op. 617), Attorney General Bonaparte construed a statute (U. S. C., title 34, sec. 163; R. S. 1420) forbidding reenlistment of deserters in the naval service and concluded that the inhibition did not apply to deserters pardoned by the President. He relied, as had Attorney General McKenna, upon the pronouncements in Ex parte Garland and other pardon cases. Later, in an opinion of February 17, 1909 (27 Op. 178), he advised the President that a pardon could not convert a dishonorable discharge into an honorable discharge and that the individual concerned could not be held eligible for pension under a statute providing pensions for persons "honorably discharged" from the Army and Navy. In this latter opinion, it will be observed, he applied the same reasoning used by the Supreme Court in Hart v. United States and in Carlesi v. New York, and by Attorney General Griggs in the opinion of February 9, 1898.

Acting Attorney General Davis in an opinion of February 15, 1918 (31 Op. 225, 233-234), expressly overruled and rejected the conclusion reached in the opinion of June 16, 1908, and held that the statute forbidding enlistment of deserters in the naval service should receive the same construction previously attributed by Attorney General Griggs to the similar statute governing enlistments in the military service. He went into the matter at some length, dealing with several statutory provisions applicable to the Navy. The following excerpt from the opinion is pertinent :

"The answer depends, I think, upon whether section 1441 is properly to be regarded as imposing punishment for an offense or as merely prescribing a qualification for appointees to office in the Navy.

66* * * An unconditional pardon abates whatever punishment flows from the commission of the pardoned offense, but can not in the nature of things eradicate the factum which is made a criterion of fitness."

Attorney General Mitchell applied the rule indicated in the foregoing quotation when advising the Director of the Veterans' Bureau on March 17, 1930 (36 Op. 193, 195), that a presidential pardon removed a disqualification to receive benefits under the World War Veterans' Act (43 Stat. 607, 629; id. 1302, 1312; U. S. C., title 38, sec. 555). He pointed out that the disqualification was imposed in a section entitled "Penalties" and was intended as a punishment for an offense in addition to the fine or imprisonment provided for in the same section.

It is stated in the documents submitted with your letter that the statute regarding which you ask my opinion has been consistently construed by the Judge Advocate General of the Army during half a century as prescribing qualifications for enlisted personnel (not as imposing punishment for offenses), and making ineligible for enlistment any person convicted of a felony regardless of subsequent pardon by the President or by the governor of a State. I have been informed, upon inquiry at your Department, that these opinions of the Judge Advocate General have been followed in the administration of the law without known exception. In the great registration of all male citizens between the ages of eighteen and forty-five for possible military service during the World War under the acts of May 18, 1917, and August 31, 1918 (40 Stat. 76, 955), as I have been further informed by your Department, persons convicted of felonies were placed in the last deferred classification without regard to subsequent pardon, and none in that classification was called for military service.

If it be conceded that the statute relating to enlistments in the military service was open to two possible construc

tions as an original proposition, it is nevertheless true that one construction (contrary to that set forth in the recalled opinion of June 1, 1897) has prevailed and that the matter is now controlled by the principle so often repeated by the courts and succinctly set forth by Attorney General Taney (2 Op. 558) as follows:

"Whenever an act of Congress has, by actual decision, or by continued usage and practice, received a construction at the proper department, and that construction has been acted on for a succession of years, it must be a strong and palpable case of error and injustice that would justify a change in the interpretation to be given to it."

See also Swendig v. Washington Co., 265 U. S. 322, 331, and United States v. Jackson, 280 U. S. 183, 193.

For the reasons hereinbefore set forth, it is my opinion that a person who has been convicted of a felony is ineligible for enlistment in the military service, under the statutory provision herein considered, although pardoned by the President or by the governor of a State.

Respectfully,

HOMER CUMMINGS.

TAYLOR GRAZING ACT-AUTHORITY FOR REMOVAL OF FOLIAGE FROM YUCCA PLANTS GROWING ON PUBLIC LANDS

Section 7 of the Taylor Grazing Act, as amended, does not authorize the Secretary of the Interior to grant permission for removal of foliage from yucca plants growing on public lands. The said section refers to disposals "under applicable public-land laws" and does not alone authorize any disposals.

The SECRETARY OF THE INTERIOR.

MY DEAR MR. SECRETARY: Under date of February 21 you requested my opinion as to whether you are authorized by section 7 of the Taylor Grazing Act, as amended (48 Stat. 1269; 49 Stat. 1976; U. S. C., title 43, sec. 315f), to grant permission for the removal of foliage (for use in manufacturing fiber) from yucca plants growing on public lands, including

areas within established grazing districts. Section 7 reads as follows:

"That the Secretary of the Interior is hereby authorized, in his discretion, to examine and classify any lands withdrawn or reserved by Executive order of November 26, 1934 (numbered 6910), and amendments thereto, and Executive order of February 5, 1935 (numbered 6964), or within a grazing district, which are more valuable or suitable for the production of agricultural crops than for the production of native grasses and forage plants, or more valuable or suitable for any other use than for the use provided for under this act, or proper for acquisition in satisfaction of any outstanding lieu, exchange or script rights or land grant, and to open such lands to entry, selection, or location for disposal in accordance with such classification under applicable public-land laws, except that homestead entries shall not be allowed for tracts exceeding three hundred and twenty acres in area. Such lands shall not be subject to disposition, settlement, or occupation until after the same have been classified and opened to entry: Provided, That locations and entries under the mining laws, including the act of February 25, 1920, as amended, may be made upon such withdrawn and reserved areas without regard to classification and without restrictions or limitation by any provision of this act. Where such lands are located within grazing districts reasonable notice shall be given by the Secretary of the Interior to any grazing permittee of such lands. The applicant, after his entry, selection, or location is allowed, shall be entitled to the possession and use of such lands: Provided, That upon the application of any applicant qualified to make entry, selection, or location, under the public-land laws, filed in the land office of the proper district, the Secretary of the Interior shall cause any tract to be classified, and such application, if allowed by the Secretary of the Interior, shall entitle the applicant to a preference right to enter, select, or locate such lands if opened to entry as herein provided." [Italics supplied.]

Confining myself to the specific question which you have submitted, I concur in the conclusion reached by your Solici58039m-42-vol. 39--11