THE SECRETARY OF WAR.

MARCH 4, 1938.

MY DEAR MR. SECRETARY: I have your letter of February 19, submitting the facts in the case of William Gordon and requesting my opinion as to the proper interpretation of section 202 (d) of the World War Adjusted Compensation Act (43 Stat. 121, 122; U. S. C., title 38, sec. 591 et seq.).

You state that William Gordon was inducted into the military service October 2, 1917, was honorably discharged on account of demobilization April 29, 1919, reentered the service by enlistment for 1 year on May 6, 1919, and was honorably discharged upon expiration of his enlistment May 5, 1920. He is entitled to benefits under the World War Adjusted Compensation Act.

The statute provides for adjusted service credit based upon military or naval service and reads, in part, as follows:

"SEC. 201. The amount of adjusted service credit shall be computed by allowing the following sums for each day of active service, in excess of sixty days, in the military or naval forces of the United States after April 5, 1917, and before July 1, 1919

"SEC. 202. In computing the adjusted service credit no allowance shall be made to

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"(d) Any individual entering the military or naval forces after November 11, 1918-for any period after such entrance

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In both the War Department and the Navy Department the language of subsection (d) has been interpreted as not applying to any individual whose enlistment expired between November 11, 1918, and July 1, 1919, if he immediately reenlisted so that there was no actual break in his service. This is a reasonable view, followed in practice during nearly 14 years, and there is no apparent occasion for disturbing it now.

If the veteran delayed his reenlistment, as in the case of Mr. Gordon, so that his military service was interrupted, your department has interpreted the statute as providing for the exclusion of service rendered after the reenlistment. The Judge Advocate General of the Army points out that

this accords with the rule that a statute is to be construed, if possible, so as to give some effect to every part thereof; that since only veterans with actual service before November 12, 1918, are entitled to the benefits of the act, section 202 (d) must be applicable to some reenlistments or it becomes surplusage.

In the Navy Department, however, the view has prevailed that service rendered after reenlistment under all such circumstances is to be included when computing the adjusted service credit. This avoids cutting off a veteran's right because of some inadvertence or procrastination in attending to his reenlistment under circumstances that could not then have suggested to the average individual any great need of haste.

The Congress has provided in section 5 of the act of August 16, 1937, c. 659, 50 Stat. 660, 661, that service following reenlistment after November 11, 1918, "shall be considered as World War service under the laws providing benefits for World War veterans and their dependents." The section is copied below.

"That notwithstanding any provision of law or veterans' regulation, except as to emergency officers' retirement pay, reenlistment in the military or naval service on or after November 12, 1918, and before July 2, 1921, where there was prior service between April 6, 1917, and November 11, 1918, shall be considered as World War service under the laws providing benefits for World War veterans and their dependents."

The conclusion of the Judge Advocate General of the Army that the broad and general language of this section cannot be applied in the computation of adjusted service credit under the World War Adjusted Compensation Act with the effect of increasing the amounts of compensation authorized by that act, and that it was not actually intended to have such application (S. Rept. 1147, 75th Cong., 1st sess.), appears to be sound.

As a matter of strict statutory construction, the view which has prevailed in the War Department is adequately supported. Other factors suggest the possibility that the

Congress would now favor the contrary view which has prevailed in the Navy Department and may have so intended in the first place, but such considerations cannot add to or subtract from the words actually used in the statute.

Under the circumstances I cannot properly advise you to abandon the practice which has been followed in your Department during the 14 years that have elapsed since the World War Adjusted Compensation Act became law, but I do suggest that the matter warrants consideration by the Congress with a view to the enactment of clarifying legislation.

Respectfully,

HOMER CUMMINGS.

POWER OF THE PRESIDENT TO REMOVE MEMBERS OF THE TENNESSEE VALLEY AUTHORITY FROM OFFICE

The Tennessee Valley Authority being an executive agency, the President is authorized under Myers v. United States, 272 U. S. 52, to remove its members from office. Humphrey's Executor v. United States, 295 U. S. 602, dealt with a member of a commission which the Court held exercised quasilegislative and quasi-judicial functions, involving factors not present in the case of the Tennessee Valley Authority, and did not disturb the prior ruling as applied to executive officers. The provision in section 4 (f) of the Tennessee Valley Authority Act for removals by concurrent resolution of the Senate and House does not provide an exclusive means of removal, apparently being intended to provide a method in addition to impeachment. The provision in section 6 that the President shall remove members for violation of the inhibition against political appointments, etc., cannot be construed as intending that he shall not remove them for other causes.

The PRESIDENT.

MARCH 18, 1938.

MY DEAR MR. PRESIDENT: I have the honor to comply with your request for my opinion respecting your power to remove members of the Tennessee Valley Authority from office.

As I understand it, charges of dishonesty and want of integrity in the conduct of their office have been made. against two members and charges of obstructing the work and demoralizing the organization have been made against the other member. Also, as I understand it, the latter member is charged with openly defying your constitutional authority to take care that the laws be faithfully executed by refusing to answer your reasonable inquiries concerning the situation existing in the Authority.

I think I may state it is an unassailable proposition that if any of these charges is established, the power of removal ought to exist. Furthermore, the Tennessee Valley Authority being an executive agency, performing executive functions, and therefore in the executive branch of the Government, the power of removal ought to be in the President.

Under the principles announced by the Supreme Court in Myers v. United States, 272 U. S. 52, there would appear to be no question that the power of removal is in fact vested in the President. The later decision in Humphrey's Executor v. United States, 295 U. S. 602, limited the appliIcation of the Myers case but did not disturb the ruling therein as applied to executive officers.

In the Myers case the Court upheld the President's power to remove a postmaster notwithstanding a statutory provision that he should hold office for four years and should be removable by the President only with the consent of the Senate. In the Humphrey's case the Court held the contrary in the case of a member of the Federal Trade Commission, but relied upon the distinguishable fact that the Federal Trade Commission exercises quasi-legislative and quasi-judicial functions and is not a part of the executive branch; and it also laid great stress upon the legislative history of the Federal Trade Commission Act as indicating a purpose of the Congress to secure the maximum independence of the Commission from Executive interference and control.

These distinguishing factors are not present in the case of the Tennessee Valley Authority. It does not exercise

quasi-legislative or quasi-judicial functions, and the legislative history of the Tennessee Valley Authority Act contains no such indications of purpose on the part of the Congress to restrict the President's ordinary power to remove executive officers appointed by him.

The following provisions of the Tennessee Valley Authority Act (48 Stat. 58, 60, 63) are the only statutory provisions bearing upon the question:

SEC. 4 (f) "The board shall select a treasurer and as many assistant treasurers as it deems proper, which treasurer and assistant treasurers shall give such bonds for the safekeeping of the securities and moneys of the said Corporation as the board may require: Provided, That any member of said board may be removed from office at any time by a concurrent resolution of the Senate and the House of Representatives."

SEC. 6. "In the appointment of officials and the selection of employees for said Corporation, and in the promotion of any such employees or officials, no political test or qualification shall be permitted or given consideration, but all such appointments and promotions shall be given and made on the basis of merit and efficiency. Any member of said board who is found by the President of the United States to be guilty of a violation of this section shall be removed from office by the President of the United States

[Italics supplied.]

The provision in section 4 (f) that members of the Board may be removed by concurrent resolution of the Senate and House does not, and could not have been intended to, provide an exclusive means of removal. This is demonstrated by the provision in section 6 that under certain conditions the President shall remove. Perhaps the most that can be said of the provision in section 4 (f), under the circumstances, is that it was intended to provide a method of removal by the legislative branch in addition to the more cumbersome method of removal by impeachment.

The provision in section 6 that the President shall remove members of the Tennessee Valley Authority Board for violation of the inhibition against appointments and promo