Burban for the commission of the offense of having violated section 2, subdivision (c) of the Narcotic Drugs Import and Export Act of May 26, 1922, supra.

Respectfully,

WILLIAM D. MITCHELL.

To the SECRETARY OF WAR.

APPLICATION OF EDWARD VOLLRATH FOR RETIREMENT UNDER EMERGENCY OFFICERS' RETIREMENT ACT

Edward Vollrath on May 23, 1929, deposited in the post office at Bucyrus, Ohio, a registered letter containing his formal application for retirement, under the Emergency Officers' Retirement Act of May 24, 1928, addressed to the regional office of the United States Veterans' Bureau at Cleveland, Ohio, which was received in the post office at Cleveland, Ohio, at 8.15 a. m. on May 24, 1929, but was not received in the bureau's regional office in that city until the morning of May 25, 1929. Held, that Vollrath's application was not received in the United States Veterans' Bureau within twelve months after the passage of the Emergency Officers' Retirement Act, as required by section 2 of said Act; and that there is no ground upon which it may be held that the Veterans' Bureau is authorized to consider it.

DEPARTMENT OF JUSTICE,

May 10, 1930.

SIR: I have the honor to comply with your request of March 3, 1930, for my opinion as to whether under the facts hereinafter set forth, Edward Vollrath seasonably filed an application for retirement in accordance with the provisions of the Emergency Officers' Retirement Act of May 24, 1928, 45 Stat. 735.

Under section 1 of that Act all persons who served as officers of the Army, Navy, or Marine Corps during the World War, other than as officers of the Regular Army, Navy, or Marine Corps, and who during such service incurred physical disability in the line of duty, and had been, or within one year after the passage of the Act, might be, rated at not less than 30 per centum permanent disability by the United States Veterans' Bureau, might be retired, upon application, with 75 per centum of the pay to which they were entitled at the time of discharge from their commissioned service. Those who were rated at less than 30 and more than 10 per

centum permanent disability might be retired without pay, but were allowed "such compensation and other benefits as are now or may hereafter be provided by law or regulations of the United States Veterans' Bureau *

The limitation which governed the timeliness of applications for the benefits of the Act is set forth in section 2, as follows:

"No person shall be entitled to benefits under the provisions of this Act except he make application as hereinbefore provided and his application is received in the United States Veterans' Bureau within twelve months after the passage of this Act: Provided, That the said director shall establish a register, and applications made hereunder shall be entered therein as of the actual date of receipt, in the order of receipt in the Veterans' Bureau, and such register shall be conclusive as to date of receipt of any application filed under this Act.

Since the Act was approved May 24, 1928, the twelvemonths period fixed for the receipt of applications expired at midnight May 24, 1929. You advise that on May 23, 1929, Mr. Vollrath deposited in the post office at Bucyrus, Ohio, a registered letter containing his formal application for retirement, addressed to the regional office of the United States Veterans' Bureau at Cleveland, Ohio, which was received in the post office at Cleveland, Ohio, at 8.15 a. m., on May 24, 1929, but was not received in the bureau's regional office in that city until the morning of May 25, 1929. The post-office authorities at Cleveland state that delay in the delivery of the registered letter to the regional office was due to the fact that an employee of the regional office called only once each day, at 8.00 a. m., for registered mail, and that the letter in question was received on the morning of May 24, 1929, shortly after the employee had made his call. The manager of the Veterans' Bureau regional office at Cleveland states that it had always been the practice for the employee of the regional office to secure all mail available at the time of his call at the post office, including registered mail; that it had always been the practice for the letter carrier, upon his later deliveries, to deliver such mail as accumulated during the day, after the call of the regional

office employee, including registered letters; that, however, about April, 1929, the practice was changed by the postal employees, and thereafter the registered official letters--that is, registered letters addressed to the bureau or the regional manager-were not given to the carrier for delivery but were held for the daily call of the regional office employee. He further says that since the bureau was not notified of such change in procedure and the carrier continued to deliver registered mail which was addressed to individuals at the regional office, the bureau had no knowledge that all registered communications were not being delivered in accordance with the original practice.

The first question is whether upon the facts above set forth the application was received in the Veterans' Bureau, within the meaning of the statute, before midnight of May 24, 1929.

The language of section 2 of the Act is plain and unambiguous. It requires the receipt of an application "in the United States Veterans' Bureau" within twelve months after the passage of the Act. It also requires the director to establish a register, and to enter applications therein as of "the actual date of receipt and in the order of receipt in the Veterans' Bureau," and makes such register conclusive as to the date of receipt of any application "filed " under the Act.

The compensation or pay provided under the Act is in the nature of a pension. In the recent case of Calhoun, Admr., v. United States, 66 Ct. Cl. 545, it was said (p. 550) :

662 * * Retired pay is not compensation for service performed. As used in the military and naval service, retired pay is a gratuity given in worthy cases in recognition of past services, for which no service whatever is rendered, and is usually in a sum less than the active-service pay. Essentially, it is a pension. See also Geddes v.

* *

United States, 38 Ct. Cl. 428, 446.

Respecting the nature of a pension, the Court said in Donnelly v. United States, 17 Ct. Cl. 105, 108:

"A pension is a periodical allowance of money to a person, in the nature partly of a gratuity and partly of payment for past benefits conferred; payment because it is supposed to be in consideration of previous services rendered to the govern

ment or the public, for which the compensation before made, if any, was inadequate in proportion to the benefits received and the ability of the nation in its prosperity to pay; a gratuity because it is not ordinarily founded on contract, and in such case can not be demanded as a legal right until the government has acknowledged its moral obligation and made the grant. As it is purely voluntary, its payment must be made and accepted in exact conformity with the terms of the grant, and must be subject to all the limitations, conditions, and exceptions therein contained."

The above cases establish that the pay or compensation provided by the Emergency Officers' Retirement Act, supra, is in the nature of a pension and is not a matter of contract; and that its payment must be made and accepted in exact conformity with the terms of the Act creating the same and is subject to all limitations and conditions therein contained.

Applying these rules to the instant case, it is clear that the action of Mr. Vollrath in mailing his application at Bucyrus, Ohio, on the day before the expiration of the twelve months period did not give rise to any contractural relationship between him and the government. There is therefore no occasion for the application of the familiar rule of contracts that an offer is accepted and the contract completed the moment a letter of acceptance is mailed. On the contrary, if the instant case were assimilated to cases of contracts entered into by mail, the mailing of the application by Mr. Vollrath would be more analogous to an offer on his part to accept the benefits of the Act in the event the Veterans' Bureau should determine him entitled thereto. Receipt of his application by the post office would then not amount to receipt by the Veterans' Bureau, under the settled rule that, where a person uses the mail to make an offer, the post office becomes his agent to carry the offer. The offer is not made when the letter is posted but when it is received, and the offerer must suffer the consequences arising from delay or mistake by the post office. See Williston on Contracts, section 34.

It may be suggested that support for a conclusion that Mr. Vollrath's application was in time is found in those in

66

surance cases which hold that proofs of loss are duly rendered" to an insurance company if deposited in the mails within the time specified in the policy, although not received by the company until after the specified time. See Manufacturers, etc., Ins. Co. v. Zeitinger, 168 Ill. 286; Craig v. Insurance Co., 80 S. C. 151. But there are other cases directly to the contrary. See Peabody v. Satterlee, 166 N. Y. 174; Davis & Son v. Russian Transport & Ins. Co., 182 App. Div. 668. And there would seem to be a clear distinction between the word "render," which was construed in those cases and the words "received in the Veterans' Bureau," here involved. Where the undertaking is to "present" the proofs of loss, it is not met by a mere mailing of the same within the stated period. Martin v. Illinois Commercial Men's Ass'n, 195 Ill. App. 421. Nor is mailing sufficient where documents are required to be "filed" within a prescribed period. United States v. Lombardo, 241 U. S. 73; State v. Erickson, 152 Minn., 349; In re State, ex rel Attorney General, 185 Ala. 347; Farmers State Bank v. Thompson, 261 Fed. 166 (C. C. A. 5th). It is true that there is authority for the proposition that the language of an insurance policy that it is not to be effective until "delivered" to or "received" by the insured is satisfied by a mailing of the policy for the sole purpose of unconditional delivery. See Jackson v. New York Life Ins. Co., 7 F. (2d) 31 (C. C. A. 9th), and cases cited. These cases, however, are based upon an application of the rule of contracts that an acceptance of an offer is effective when mailed and, for the reasons above stated, have no application to the present question.

In my judgment the statute here involved does not permit a construction that an application may be regarded as "received in the Veterans' Bureau" when it is deposited in the mail. Nor is there any ground on which a conclusion may properly be reached that the fact that this application had not only been deposited in the mail but received in the post office at Cleveland before the expiration of the twelve months' period was equivalent to receipt in the Veterans' Bureau. I am therefore of the opinion that the requirement of section 2 with respect to the time of application was not complied with.