The SECRETARY OF WAR.

MARCH 24, 1937.

MY DEAR MR. SECRETARY: Under date of November 13, 1936, you requested my opinion as to whether the pay of an Army officer may be withheld under the act of May 26, 1936, c. 452, 49 Stat. 1374, to satisfy an indebtedness to the Government arising from an unauthorized payment made to the officer, and disallowed by the General Accounting Office, prior to the passage of the act.

The statute reads as follows:

"That hereafter, whenever upon the statement of the account of any disbursing officer of the United States in the General Accounting Office credit shall have been disallowed for any payment to any person in the executive branch of the Government, otherwise entitled to compensation from the United States or from any agency or instrumentality thereof, such compensation of the payee may be withheld until full reimbursement has been accomplished under such regulations as may be prescribed by the head of the department, branch, or independent establishment (including corporations) under which such payee is entitled to receive compensation ***" [Italics supplied.]

The statute thus authorizes the withholding of compensation payable to any person in the executive branch of the Government whenever, upon the statement of the account of a Government disbursing officer in the General Accounting Office, credit for any payment to such person "shall have been disallowed." The question presented turns upon the meaning of the quoted words.

The general rule seems to be that the words "shall have been" when used in a statute will be construed in accordance with their grammatical meaning, that is, as referring to an event to be completed in the future, unless other provisions of the statute, its purpose, or other circumstances evidence a legislative intent to give these words a retrospective as well as a prospective effect. In Seale v. Balsdon, 51 Cal. App. 677, 680-681, the court said: "The words 'shall have been,' grammatically construed, relate to the future perfect tense, something which is to be done and perfected after

the date of the enactment of the law in question." Other cases in which the grammatical meaning was held controlling are State v. City of Newark, 40 N. J. L. 92; Dewart v. Purdy, 29 Pa. 113; Whedon v. Gorham, 38 Conn. 408. But where the Courts have concluded that the legislature intended to embrace events prior to the enactment of the statute, the future perfect tense has been held to have both a retrospective and prospective application. Norris v. Sullevan, 47 Conn. 474; Clark v. Kansas City, etc., Railroad Co., 219 Mo. 524; People ex rel. Eckerson v. Board of Education, 126 App. Div. (N. Y.) 414, 110 N. Y. S. 769.

The rule to be followed in determining whether a statute shall be construed to have a retroactive effect is stated in U. S. Fidelity Co. v. Struthers Wells Co., 209 U. S. 306, 314, as follows:

"The presumption is very strong that a statute was not meant to act retrospectively, and it ought never to receive such a construction if it is susceptible of any other. It ought not to receive such a construction unless the words used are so clear, strong and imperative that no other meaning can be annexed to them or unless the intention of the legislature cannot be otherwise satisfied."

This general rule is frequently, and perhaps ordinarily, not applied when the statute deals solely with matters of procedure. (See the Struthers Wells case, at p. 316.) The considerations to be taken into account in determining whether or not a statute falls within this exception to the general rule are stated in Sutherland on Statutory Construction, 2nd Ed., pp. 1227-1228:

"Every case must to a considerable extent depend on its own circumstances. General words in remedial statutes may be applied to past transactions and pending cases, according to all indications of legislative intent, and this may be greatly influenced by considerations of convenience, reasonableness and justice."

It will be noted that the disallowances which give occasion for the withholding of compensation are ex parte determinations made by an administrative officer in the settlement of the accounts of Government disbursing officers

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and that the effect of such determinations, when followed by the withholding of compensation, is to compel the person whose compensation has been withheld, either to lose the amount withheld or sue the United States for the recovery thereof. In such a suit the claimant must affirmatively establish the invalidity of the determination made by the General Accounting Office. This forces the claimant to determine whether the amount which may be recovered by such litigation is sufficient to warrant the expense of the litigation. The statute likewise has the effect of removing the presumption of validity which might be reasonably regarded as attaching to a payment duly approved by an authorized Government disbursing officer. It is because of such considerations that the courts, in construing statutes which were alleged to authorize the withholding of compensation on account of payments which Government accounting officers had determined to be erroneous, have consistently given these statutes a strict construction. Smith v. Jackson, 241 Fed. 747, affirmed 246 U. S. 388; McCarl v. Cox, 8 F. (2d) 669; McCarl v. Pence, 18 F. (2d) 809. In McCarl v. Cox, the court said (p. 671):

"It would require very specific provision to convince us that Congress intended to clothe an accounting officer with power to withhold in whole or in part the salary of an officer of the Navy, appropriated for by it, as a set-off against a sum found by that accounting officer to be due the Government because of alleged overpayments in allowances regularly made to and received by that officer in good faith. * * *

"It is obvious that to require an officer to sue the United States, in such circumstances, would impose upon him the burden of proving a negative, or that he was not indebted to the United States, instead of compelling the Government to assume the burden rightfully upon it of establishing its contentions by affirmative proof."

Irrespective, therefore, of whether the present statute is to be regarded as one relating solely to a procedural remedy, as distinguished from one affecting substantive rights, it unquestionably is one which existing judicial decisions in

dicate should be strictly construed. Under these circumstances, it would, in my opinion, fall within the general rule that a statute is not to be given a retroactive effect unless its terms clearly so require. Not only do the words of the act of May 26, 1936, not so require, but if its language is given its ordinary grammatical meaning, it has merely a prospective application.

This conclusion is to some extent supported by the use of the word "hereafter" at the beginning of the statute. Obviously there could be no withholding under the terms of the statute until after its enactment, in other words, hereafter, and this word may be deemed surplusage if it refers only to the withholding of compensation. If the word is to be given any significance, therefore, it must be construed as qualifying the disallowances which are the occasion for the withholding of compensation no less than the withholding itself.

I therefore conclude that the act does not permit the withholding of compensation on account of a payment as to which the General Accounting Office, in its statement of the account of a disbursing officer, disallowed a credit prior to the passage of the act.

Respectfully,

HOMER CUMMINGS.

RENDITION OF OPINIONS ON CONSTITUTIONALITY OF STATUTES-FEDERAL HOME LOAN BANK ACT

The head of a department is under no duty to question or to inquire into the constitutional power of the Congress. There can rarely be proper occasion for the rendition of an opinion by the Attorney General upon the constitutionality of a measure after it has become law, and it is not within the province of the Attorney General to declare an act of the Congress unconstitutional-at least where it does not involve conflict between the prerogatives of the legislative and executive departments.

It is not within the scope of the Attorney General's duty to render opinions for the guidance of private persons who engage in transactions with the United States.

Suggested that the instant request for an opinion as to the constitutionality of the creation of the Federal home-loan banks under the Federal Home Loan Bank Act be withdrawn.

The PRESIDENT.

MARCH 26, 1937.

MY DEAR MR. PRESIDENT: In response to a request from the Federal Home Loan Bank Board that you obtain my opinion on "the constitutionality of the creation of the Federal home-loan banks under the Federal Home Loan Bank Act" (July 22, 1932, c. 522, 47 Stat. 725; U. S. C., title 12, secs. 1421 et seq.) you submitted the matter to me, and suggested that, if I knew of no objection, I comply with the request. I expressed reluctance to do so because of a well-settled practice to which I shall hereafter refer at greater length and which, it seemed to me, ought not to be abandoned. Thereafter, with your letter of January 5, 1937, you transmitted to me a letter addressed to you by the Chairman of the Board under date of December 31, 1936, resubmitting the question for further examination.

Save in exceptional cases it has been the practice of Attorneys General to refrain from rendering opinions as to the constitutionality of enactments of the Congress after their approval or disapproval by the President. While the bill which became the Federal Home Loan Bank Act was awaiting executive action, my predecessor was asked to let the President know whether, in his judgment, there were any objections to its approval. Under the established practice my predecessor's report is not available to the public, but I think I may say, subject to your approval, that it suggested no constitutional or other objection to the bill-nor do I find any.

I think I should take this occasion, however, to stress the soundness of the rule which I have mentioned and the grave objections to the rendition of opinions by the Attorney General upon requests from the heads of the Federal Departments and independent establishments concerning the constitutionality of laws they have been appointed to administer. There is no warrant for such requests as the presumption of validity is binding upon them and they must act accordingly.

In my opinion of August 16, 1935 (38 Op. 252, 253), to the Secretary of the Treasury, concerning the duty of disburs