the position. He was subsequently confirmed by the Senate and received his commission."

The Civil Service Commission "recognizes the applicability to the present case of the legal principles set forth" in decisions of former Attorneys General appearing in 20 Op. 274, 21 Op. 289, id. 335, and 30 Op. 169, but disagrees with the correctness of those decisions and desires their reconsideration. I find no sufficient reason, however, to overrule them. As pointed out in those decisions, "the regularity of the steps taken by the Civil Service Commission is not jurisdictional" in the sense that action based thereon is null and void if irregularities later appear. At most, the Commission's findings and certification are quasi-jurisdictional, and it is not believed that after the appointment has been made a change by the Commission in its findings renders the appointment void. See Noble v. Union River Logging Railroad, 147 U. S. 165.

Respectfully,

ROBERT H. JACKSON.

EXCLUSION OF “INDIANS NOT TAXED" WHEN APPORTIONING REPRESENTATIVES

Whether there are now any "Indians not taxed" (since all Indians are subject to the Federal income tax law) is a question not free from doubt and for determination by the Congress when apportioning Representatives under the applicable constitutional provision.

The Attorney General's opinion upon the question is not necessary at this time for any administrative purpose within the Department of Commerce and would not be determinative..

The SECRETARY OF COMMERCE.

NOVEMBER 28, 1940.

MY DEAR MR. SECRETARY: In your letter of November 9, 1940, you state in part:

"Section 2 of the 14th Amendment to the Constitution provides that in apportioning representatives, "Indians not taxed" shall be excluded. The census of population upon which the reapportionment of Representatives is to be based is now being prepared.

"Since it appears that today all Indians are subject to the Federal income-tax law, your opinion is respectfully requested as to whether there are any Indians not taxed, within the meaning of that phrase as it appears in the Constitution and the 14th Amendment thereto. There is enclosed herewith a recent opinion of the Solicitor of this Department on this subject."

Also enclosed with your letter is an opinion of the Solicitor of the Department of the Interior dealing with the question at some length.

As pointed out by the Solicitor of the Department of the Interior the answer to your question depends upon whether the phrase "Indians not taxed" refers (1) to Indians not actually paying taxes or only to those who are not subject to taxation and (2) to Indians not taxed or subject to taxation by any taxing authority or only to those not taxed or subject to taxation by the States in which they reside. The bearing of these preliminary questions upon the question presented is apparent in view of the recent decisions of the Supreme Court holding that all Indians are subject to the Federal income-tax law.

The question presented has been discussed in a number of court decisions but the issue has never been squarely raised in any of the decided cases. Some of the cases and some statements appearing in the debates in the Constitutional Convention lend support to the view that since all Indians are now subject to the Federal income-tax laws there are no longer any Indians not taxed within the meaning of the constitutional phrase. On the other hand, other decided cases and other statements appearing in the debates in the Convention equally support the contrary view. Thus it appears that, as stated by your Solicitor, the question presents a "perplexing problem," and that the answer to it is not free from doubt.

The Congress is aware, of course, of the recent decisions of the Supreme Court holding all Indians subject to the Federal income-tax laws. What construction the Congress will now give to the phrase "Indians not taxed" is a question for it to decide, and action taken by it with respect thereto

will be final, subject only to review by the courts in proper cases brought before them. An opinion on the question by the Attorney General would not be determinative, since neither the Congress nor the courts would be bound by such opinion.

Moreover, it does not appear that an answer to your question is necessary at this time for any administrative purpose within your Department. In my opinion, a continuance by you of the practice heretofore followed in your Department with respect to the subject will meet every administrative requirement imposed upon your Department in the premises, and in addition well may furnish to the Congress information desired by that body as a basis for action on its part.

It is recommended, therefore, that you at this time follow your former practice, giving to the Congress full information with respect thereto.

Respectfully,

ROBERT H. JACKSON.

AUTHORITY OF NATIONAL BANKS TO PLEDGE ASSETS TO SECURE CERTAIN DEPOSITS

A national bank, designated as a depositary of public money, may pledge its assets to secure deposits of moneys received by postmasters in their official capacities.

It is not certain that the courts would uphold pledges to secure moneys deposited by private litigants in the registry of a United States court, moneys collected by receivers of insolvent joint-stock land banks, or moneys received and disbursed by market administrators administering milk orders issued by the Secretary of Agriculture.

The SECRETARY OF THE TREASURY.

NOVEMBER 29, 1940.

MY DEAR MR. SECRETARY: Reference is made to your letter of July 19, 1940, requesting my opinion as to whether a national bank, which has been duly designated as a depositary of public money by the Secretary of the Treasury as provided for by section 5153 of the Revised Statutes, as amended, may validly pledge its assets to secure the following kinds of deposits:

(1) Moneys received by postmasters in their official capacities, and deposited by them pursuant to section 3848 of Rev. Stat. of 1873, as amended (U. S. C., title 39, sec. 48).

(2) Moneys paid into a United States court, which are deposited in the name and to the credit of the court pursuant to section 995 of Rev. Stat. of 1873, as amended (U. S. C., title 28, sec. 851).

(3) Moneys collected by receivers of insolvent joint-stock land banks, paid over to the Treasurer of the United States, subject to the order of the Farm Credit Administration, and subsequently, on order of the Farm Credit Administration, deposited to the credit of the receivers.

(4) Moneys received by market administrators, under orders and regulations prescribed by the Secretary of Agriculture pursuant to the Agricultural Adjustment Act of 1933, 48 Stat. 31, as reenacted and amended by the act of June 3, 1937, 50 Stat. 246 (U. S. C., Supp. V, title 7, sec. 601, et seq.).

Section 5153 of the Revised Statutes (derived from section 45 of the National Banking Act of June 3, 1864) as amended, and as it appears in the Code, provides in part (U. S. C., title 12, sec. 90):

*

"All national banking associations, designated for that purpose by the Secretary of the Treasury, shall be depositaries of public money, under such regulations as may be prescribed by the Secretary *. The Secretary of the Treasury shall require the associations thus designated to give satisfactory security, by the deposit of United States bonds and otherwise, for the safe-keeping and prompt payment of the public money deposited with them.

In Texas & Pacific Ry. v. Pottorff, 291 U. S. 245, the Supreme Court held that a national bank was without authority to pledge its assets as security for private deposits, and in Marion v. Sneeden, 291 U. S. 262, the authority of national banks to pledge their assets to secure deposits of State and local governmental agencies was likewise denied, except where permission is given by the act of June 25, 1930, c. 604, 46 Stat. 809 (U. S. C., title 12, sec. 90). To permit the pledge, the Court pointed out in the Pottorff case, would be inconsistent

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with many provisions of the National Banking Act which are designed to ensure, in case of disaster, uniformity in the treatment of depositors and a ratable distribution of assets.

The cases mentioned above dealt with the private aspect of national banks. In Inland Waterways Corp. v. Young, 309 U. S. 517, the function of national banks as depositaries of Federal funds was considered. In that case the deposits were made by three governmental agencies, two of which were corporations wholly owned by the United States. The Supreme Court held that a national bank was authorized to pledge its assets to secure deposits of such Federal funds even if they were not "public money" within the scope of section 45 of the National Banking Act. Although the agencies were not required by statute to obtain security for the particular deposits, the Court observed that the Congress for many years had been concerned with protecting the integrity of Government moneys, and had recognized the power of national banks to give security for deposits "of a governmental nature" by laying upon various agencies, charged with the custody of such funds, a duty to exact collateral. It was pointed out that the funds of the Government corporations were for all practical purposes Government funds and that any losses of such moneys would be borne by the Government. Support for the implied power of national banks to pledge their assets to secure such deposits was also found in the long-continued administrative practice to require security in similar transactions.

Judged by the above standards there seems to be no doubt that national banks are authorized to give security for moneys received by postmasters in their official capacities and deposited by them pursuant to section 3848 of the Revised Statutes.

Section 3848 of the Revised Statutes, as amended (U. S. C., title 39, sec. 48), provides:

"The postmaster at Washington and postmasters at cities. where there is a designated depositary shall deposit the postal revenues and all money accruing at their office, as often as once a week at least, and as much oftener as the Postmaster General may direct."