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It may be suggested, however, that receipt of the application in the Veterans' Bureau was prevented by the acts or omissions of agents of the Government and that accordingly compliance with this requirement was excused or the Government estopped to assert noncompliance. It may be questioned whether the ordinary rule that prevention of performance of a condition is an excuse for nonperformance thereof has any application here, in view of the well settled doctrine that "the Government is not responsible for the laches or the wrongful acts of its officers," Hart v. United States, 95 U. S. 316, 318. See also Yuma Water Ass'n v. Schlecht, 262 U. S. 138, 143–144; German Bank v. United States, 148 U. S. 573, 579; Robertson v. Sichel, 127 U. S. 507, 515; Utah Power & Light Co. v. United States, 243 U. S. 389, 409; United States v. Pine River Logging & Improvement Co., 89 Fed. 907, 917, aff'd 186 U. S. 279. None of the abovecited cases in which this rule has been enunciated, however, is exactly similar to the present one and it is not necessary to rely upon it here. Upon the facts as you state them, I find no basis for an assertion that there was any negligence on the part of officers or employees of the Veterans' Bureau or that they may fairly be said to have been responsible for the nonreceipt of the application in the Cleveland regional office before midnight of May 24, 1929. Upon your statement, the Veterans' Bureau had no reason to suppose that registered official mail not collected by its employee upon his early morning call would not be delivered by the post office during the day in the ordinary manner. The failure of the postal authorities to deliver this letter promptly may not properly be considered in excuse for noncompliance with the requirements of the statute. The post office was the agency selected by the applicant for the transmission of his application. In transactions between private parties he would take the risk of its negligence, and in my judgment the situation is not changed by the fact that the document transmitted was one which might give rise to a claim against the Government.

I am therefore of the opinion that Mr. Vollrath's application was not received in the United States Veterans' Bureau within twelve months after the passage of the Emergency Officers' Retirement Act, supra, and that there is no ground

upon which it may be held that the Veterans' Bureau is authorized to consider it.

Respectfully,

WILLIAM D. MITCHELL.

TO THE DIRECTOR, UNITED STATES VETERANS' Bureau.

AUTHORIZED NUMBER OF LINE OFFICERS OF THE NAVY

The total authorized number of commissioned officers of the active list of the line of the Navy, exclusive of commissioned warrant officers, should be computed upon the basis of 4 per centum of 137,485, comprising the permanent authorized enlisted strength of 131,485 plus 6,000 apprentice seamen; and, in determining whether the number of officers thus computed have been commissioned, officers designated pursuant to law as additional numbers in grade should be excluded.

DEPARTMENT OF JUSTICE,

May 19, 1930.

SIR: I have the honor to reply to your letter of March 13, 1930, requesting my opinion for the guidance of the Navy Department in the assignment of appointments to the 1930 Graduating Class of the United States Naval Academy.

Receipt is acknowledged of a letter bearing date May 14, 1930, from the Acting Judge Advocate General of the Navy enclosing a memorandum with reference to the authorized number of line officers of the Navy. In referring to this memorandum the Acting Judge Advocate General states:

"You will note from the inclosure that there will be ample vacancies in the line for the appointment of all midshipmen of this year's graduating class if it should be determined that the maximum authorized number of commissioned officers of the line of the Navy, exclusive of commissioned warrant officers, is to be arrived at by computing 4 per cent of the permanent authorized enlisted strength of 131,485, plus 6,000 apprentice seamen and adding 60 additional number officers to the result, making a total authorized number of 5,559 commissioned line officers, exclusive of commissioned warrant officers. The question whether 14,000 enlisted men authorized for instruction in trade. schools in addition to the permanent authorized enlisted

strength of the Navy may be included in computing the number of commissioned officers will not, therefore, be of any practical importance this year if it shall be determined that the computation should be made in the manner hereinbefore stated. It will, however, be further noted that the question of including trade school men in the computation will be of very great practical importance next year at which time, according to the present estimates, there will be 68 surplus graduates if these men are excluded, and that the question will be progressively important in the subsequent years.'

This opinion is accordingly confined to a consideration of the questions (1) whether in computing the total authorized number of commissioned officers of the active list of the line of the Navy, exclusive of commissioned warrant officers, the 4 per centum fixed by law as the basis for such computation may properly be applied to the number 137,485, comprising the permanent authorized enlisted strength of 131,485 plus 6,000 apprentice seamen; and (2) whether officers who are or may be designated pursuant to law as additional numbers in grade are to be excluded from the authorized 4 per centum.

In an opinion of September 5, 1922 (33 Op. 311, 315), the Attorney General advised your predecessor that "the total number of commissioned officers of the active list of the line of the Navy may be computed at the present time upon the basis of the total authorized enlisted strength of 131,485 men as provided in the Act of July 1, 1918." There has been no pertinent change in the statutes. As you suggest, however, the particular question then under consideration was merely whether the Navy Department should use that figure or a lower figure representing the average number of enlisted men in the Navy as provided in the Act of July 1, 1922. The question was not presented, nor any opinion expressed, as to whether any enlisted men in addition to the 131,485 should also be considered in computing the number of officers.

The Act of August 29, 1916, c. 417, 39 Stat. 556, 576, directed that:

"Hereafter the total number of commissioned officers of the active list of the line of the Navy, exclusive of com

missioned warrant officers, shall be four per centum of the total authorized enlisted strength of the active list, exclusive of the Hospital Corps, prisoners undergoing sentence of discharge, enlisted men detailed for duty with the Naval Militia, and the Flying Corps

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This statute carried appropriations for enlisted men on the active list as follows (p. 575):

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'pay of petty officers, seamen, landsmen, and apprentice seamen, including men in the engineers' force and men detailed for duty with the Fish Commission, sixty-eight thousand seven hundred men, and the President is hereafter authorized, whenever in his judgment a sufficient national emergency exists, to increase the authorized enlisted strength of the Navy to eighty-seven thousand men; and pay of enlisted men of the Hospital Corps, and for the pay of enlisted men detailed for duty with the Naval Militia, $30,655,704.29; pay of enlisted men undergoing sentence of court-martial, $225,000, and hereafter the number of enlisted men of the Navy shall be exclusive of those sentenced by court-martial to discharge; and as many machinists as the President may from time to time deem necessary to appoint; and six thousand apprentice seamen under training at training stations, and on board training ships, at the pay prescribed by law, $999,630; Provided, That the enlisted strength of the Navy authorized in this Act shall be deemed to include all enlistments heretofore made during this calendar year which may have been in excess of the number authorized by law at the time *" (Italics ours.)

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Thus the enlisted men of the Hospital Corps, the Naval Militia, those sentenced by court-martial to discharge, and 6,000 apprentice seamen under training were not, for the purposes of this Act, included in "the authorized enlisted strength of the Navy" (68,700, authorized to be increased to 87,000 mer by the President in case of emergency). In the same Act, computation of the number of commissioned officers of the active list was based upon "the total authorized enlisted strength of the active list," excluding from the total only a part of the enlisted men excluded from the 68,700 (see quotation supra). It is therefore obvious that the figure 68,700 was not regarded as the total authorized

enlisted strength, and that in computing the number of commissioned officers of the active list under the Act of August 29, 1916, it was contemplated that there should be added to the 68,700 6,000 apprentice seamen under training who were in terms excluded from the 68,700 men but were not excluded from the total authorized enlisted strength.

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By the Act of May 22, 1917 (c. 20, 40 Stat. 84), the authorized enlisted strength of the active list of the Navy was temporarily increased from 87,000 to 150,000" including four thousand additional apprentice seamen," and the appointment of additional commissioned officers based upon this temporary increase was authorized; it being provided that such additional appointments should continue in force not later than six months after termination of the War. This legislation was of a purely temporary character.

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By the Act of July 1, 1918, c. 114, 40 Stat. 704, 714, "the authorized enlisted strength of the active list of the Navy" was permanently increased from 87,000 to 131,485, and by amendment of the Act of May 22, 1917, was temporarily increased to 181,485. This statute continued in effect the method of the Act of 1916 for the computation of the number of commissioned officers at 4 per centum of "the total authorized enlisted strength of the active list," exclusive of the Hospital Corps, prisoners undergoing sentence and discharge, enltisted men detailed for duty with the Naval Militia, and the Flying Corps, and redefined the term authorized enlisted strength" as meaning the total number of enlisted men of the Navy authorized by law exclusive of these four classes and exclusive also of apprentice seamen, those furloughed without pay, and those under instruction in the trade schools. The phrase "the total authorized enlisted strength of the active list" as used in the Act of August 29, 1916, and the phrases "authorized strength of the Navy as used in the Act of August 29, 1916, and "authorized enlisted strength" as used in the Act of July 1, 1918, were thus sharply distinguished by excluding appren. tice seamen from the two latter phrases but not from the former phrase, which is the basis for computing the number of commissioned officers. The legislative intent is therefore plain that the computation of the total number of com

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