until a successor has been duly appointed and qualified, and has taken possession of the office; except that in cases where there is a delay of sixty days in supplying a vacancy, the sureties may terminate their responsibility by giving notice, in writing, to the Postmaster General, such termination to take effect ten days after sufficient time shall have elapsed to receive a reply from the Postmaster General; and the Postmaster General may, when the exigencies of the service require, place such office in charge of a special agent until the vacancy can be regularly filled; and when such agent shall have taken charge of such post office, the liability of the sureties of the postmaster shall cease.' (U. S. C., title 39, sec. 38; R. S., sec. 3836; March 1, 1921, c. 88, sec. 1, 41 Stat. 1151; June 10, 1921, c. 18, sec. 304, 42 Stat. 24.)

"It is further provided in an act reported in section 39, title 39, U. S. C.:

"Whenever the office of a postmaster becomes vacant through death, resignation, or removal, the Postmaster General shall designate some person to act as postmaster until a regular appointment can be made by the President in case the office is in the first, second, or third class, and by the Postmaster General when the office is in the fourth class; and the Postmaster General shall notify the General Accounting Office of the change. The postmaster so appointed shall be responsible under his bond for the safekeeping of the public property pertaining to the post office and the performance of the duties of his office until a regular postmaster has been duly appointed and qualified and has taken possession of the office. Whenever a vacancy occurs from any cause the appointment of the regular postmaster shall be made without unnecessary delay. A person who, upon the occurrence of a vacancy and pending the appointment of a postmaster or the designation of an acting postmaster, assumes and properly performs the duties of postmaster at any thirdor fourth-class post office shall be allowed compensation as postmaster for the period of such service * (U. S. C., title 39, sec. 39; March 1, 1921, c. 88, sec. 1, 41 Stat. 1151; June 10, 1921, c. 18, sec. 304, 42 Stat. 24; April 22, 1937, c. 122, 50 Stat. 71.)

"There seems to be derivable from these two provisions a distinction between a vacancy occurring upon the expiration of a postmaster's commission and a vacancy occurring because of the death, resignation, or removal of a postmaster. Under section 38 of the U. S. Code as quoted above, it is indicated that a postmaster, on the expiration of his term, should hold over in office until his commission expires or until a successor is duly appointed, qualified, and takes possession of the office.

"Section 39 of the Code provides for the creation of an acting postmastership only when the office is vacated by the death, resignation, or removal of a postmaster. Since the act of June 25, 1938, provided, as of that date, for the inclusion of Presidential postmaster positions in the classified service, it was necessary for Congress to establish for incumbent postmasters not having a civil service status a legal right to continue in civil-service positions after June 25, 1938. This was accomplished by the proviso that 'postmasters now serving may continue to serve until the end of their terms.' The interposition of title 39 of the Code enumerating the specific and exclusive conditions under which acting postmasterships may be created would seem to preclude the creation of acting postmasterships so far as the hold-over incumbents are concerned because the office has not been vacated by one of the three conditions named in the statutedeath, resignation, or removal. Further, under the provisions of title 38 of the Code, hold-over postmasters are charged with certain responsibilities as to the safeguarding of public property entrusted to their care and to the discharge of the duties of the office until replacement is made by a duly appointed successor.

"At this point it may be argued that the procedure outlined in title 38 of the U. S. Code charging the hold-over postmaster with the continued operation of the office and requiring appointing officials to proceed without delay in supplying the vacancy, includes authority for the hold-over incumbent's retention without regard to his civil-service status. Should this interpretation be adopted, however, the

plain intention of the act of June 25, 1938, to bring postmasterships into the classified civil service could partially fail of its purpose by nonaction by the appointing authority as to the reappointment of a duly qualified candidate at the expiration of existing terms. Under such an interpretation, hold-over postmasters without civil-service status could continue to occupy civil-service positions indefinitely and there would be no authority in the Commission to require the terminations of such appointments and the filling of the positions under the alternative processes described in section 2 of the act of June 25, 1938. For this reason, and to effectuate what it conceives to be the fundamental objective of this statute, the Commission has adopted the view that at the expiration of an existing term, the continued occupancy of a postmastership by a hold-over incumbent could and should be regarded as authorized by the continuing provisions of Civil Service Rule VIII, under which a person without civil-service status can be temporarily assigned to a civil-service position, pending the regular filling of the vacancy. The acceptance of this interpretation would provide the Commission with the authority to place a time limit on the temporary incumbency and to require the filling of the position through regular methods, by withdrawing authority for further temporary appointment."

Thus it appears that the question upon which the Civil Service Commission desires the opinion of the Attorney General may be stated as follows:

"Does the Civil Service Commission, in view of the provisions of the act of June 25, 1938, have authority to fix a time. limit within which the President must act to fill a vacancy in an office of postmaster of the first, second, or third class?"

On this question attention is invited to the opinion of Attorney General Miller to the Postmaster General, dated August 22, 1892 (20 Op. 447). That opinion dealt with the status of James Hill, Postmaster at Vicksburg, Miss., and with the liability of the sureties on his bond. Mr. Hill, under date of June 2, 1891, had been given a recess appointment as such postmaster by the President, his commission to continue until the next session of the Senate and no longer.

After the Congress convened in December 1891, the nomination of Mr. Hill was duly sent to the Senate by the President, but the Senate adjourned without taking action thereon. Discussing the legal questions involved, Attorney General Miller, after quoting section 3836 of the Revised Statutes (U. S. C., title 39, sec. 38), said in part:

"The words 'whenever the office of any postmaster becomes vacant' are general, and, in my opinion, include the case stated by you. The expiration of Mr. Hill's commission does not, in my opinion, put him or his sureties in any different relations to the Government than is occupied by a postmaster and his sureties where a commission for four years has expired.

"Until some action is taken by the President or yourself it is not to be supposed that the duties of the office are to remain undischarged, and the public service brought to a standstill. To avoid this Congress has provided in the section referred to that 'every postmaster and his sureties shall be responsible under their bond for the safekeeping of the public property of the post office, and the due performance of the duties thereof, until the expiration of the commission, or until a successor has been duly appointed and qualified and has taken possession of the office.' The word 'or' should, in my opinion, be read 'and.' This is made clear by the following words: 'Except that in cases where there is a delay of sixty days in supplying a vacancy, the sureties may terminate their responsibility by giving notice in writing,' etc.

*

**

*

"This section makes it the duty of the appointing power to act promptly by requiring the vacancy to be filled 'without delay.' It at the same time impliedly recognizes that conditions may exist preventing immediate action. A reasonable time must elapse in any event, and even if the appointing power failed in any case to act, the public interests are protected by making the parties responsible for the due performance of the duties of the office,

"It may be said that this construction enables the President to fill this and similar offices continuously without the

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advice and consent of the Senate. I think not. It is not to be presumed that the duty enjoined upon the President of filling such a vacancy without delay will be neglected longer than is necessary to enable him to make the proper selection, or that he will seek to assume power which belongs to him generally in conjunction with the Senate. Such presumptions as has been before said (19 Op. 264), are 'incompatible, with the character of the high office with which the votes of an intelligent people have intrusted the President.' The Constitution provides for the expiration of the commission; it in no way affects the office or provides that its duties shall cease. Mr. Hill's term was limited, but Congress has provided for the continuance of the business of the office by providing that the incumbent and his sureties shall continue to manage it and discharge its functions until the vacancy is filled or you send agents to take charge thereof."

I think that the position taken by Attorney General Miller in the above opinion is sound, and that the principles announced by him are applicable to the question presented by the Civil Service Commission, as I have interpreted it. It follows, in my opinion, that the question must be answered in the negative.

Respectfully,

FRANK MURPHY.

COUNTERVAILING DUTIES ON IMPORTS FROM ITALY Payments made to exporters of Italian silk products, with the effect, manifestly intended, of enabling them successfully to compete in the markets of this country are bounties or grants within the meaning of sec. 303, Tariff Act of 1930, and it is the duty of the Secretary of the Treasury to impose countervailing duties upon such products when imported into the United States from Italy.

The proposed Treasury decision is appropriate in form and substance to accomplish that purpose.

The SECRETARY OF THE TREASURY.

APRIL 14, 1939.

MY DEAR MR. SECRETARY: Reference is made to your letter of April 11, 1939, transmitting a proposed Treasury decision imposing countervailing duties, under section 303