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missioned officers should be based upon the authorized enlisted strength as fixed by law, plus apprentice seamen. I find nothing in any later statute which can have the effect of excluding the authorized number of apprentice seamen from this basis of computation.

By the Act of July 11, 1919 (c. 9, 41 Stat. 131), the temporary increases in the authorized enlisted strength of the active list of the Navy were required to be gradually reduced, so that after June 30, 1920, the permanent authorized strength of 131,485 was restored, with authority, however, in the President to increase this figure to 191,000 men in case of a national emergency (41 Stat. 137, 138). In making these reductions Congress departed from its usual practice and directed that the total authorized strength specified in this Act should include the Hospital Corps, apprentice seamen, those sentenced by court-martial to discharge, enlisted men of the Flying Corps, those under instruction in trade schools, and members of the Naval Reserve Force so serving. But these provisions were limited by the following proviso (41 Stat. 138):

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Provided further, That nothing herein shall be construed as affecting the permanent, commissioned, or enlisted strength of the Regular Navy as authorized by existing law."

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The authorized number of apprentice seamen training at training stations and on board training ships" was fixed by the Act of August 29, 1916, at 6,000. This number was temporarily increased by the Act of July 1, 1918, but reduced to the 1916 figure by the Act of July 1, 1922, and it has not since been changed. It is accordingly my opinion that in computing the total authorized number of commissioned officers of the active list of the line of the Navy, exclusive of commissioned warrant officers, 4 per centum may be applied to the number 137,485, comprising the permanent authorized enlisted strength of 131,485, plus 6,000 authorized apprentice seamen.

The practice of designating officers as additional numbers in the various grades, either by promotion for distinguished service or by reinstatement after separation from service, originated when the numbers in each grade were

fixed by Acts of Congress. (Act of August 5, 1882, c. 391, 22 Stat. 284, 285; Act of March 3, 1899, c. 413, 30 Stat. 1004, 1005; Act of March 3, 1903, c. 1010, 32 Stat. 1177, 1197.) These appointments were in addition to the number fixed for each grade, and therefore in addition to the aggregate number of officers in all grades. (Acts of March 3, 1901, c. 852, 31 Stat. 1107, 1108 (U. S. C., Title 34, Sec. 344); June 16, 1906, c. 3338, 34 Stat. 296 (U. S. C., Title 34, Sec. 343); June 30, 1906, c. 3911, 34 Stat. 634; June 23, 1926, c. 663, 44 Stat. 764; February 16, 1927, c. 156, 44 Stat. 1103; May 28, 1928, c. 825, 45 Stat. 790; February 18, 1929, c. 261, 45 Stat. 1228.) The Act of August 29, 1916, c. 417, 39 Stat. 556, 576, substituted for fixed statutory enumeration of each grade a mathematical formula pursuant to which the Secretary of the Navy should from time to time fix the numbers in the various grades. The pertinent provisions of this Act have been carried into the United States Code (Title 34, secs. 4, 7, and 8), and read as follows:

"4. Distribution of commissioned line officers among grades. The total number of commissioned line officers on the active list at any one time, exclusive of commissioned warrant officers, shall be distributed in the proportion of one of the grade of rear admiral to four in the grade of captain, to seven in the grade of commander, to fourteen in the grade of lieutenant commander, to thirty-two and one-half in the grade of lieutenant, to forty-one and onehalf in the grades of lieutenant (junior grade) and ensign, inclusive. (Aug. 29, 1916, c. 417, 39 Stat. 576.)

"7. Dates for determining number of officers in various grades and ranks of line and staff.-To determine the authorized number of officers in the various grades and ranks of the line and of the staff corps as provided in sections 4 and 5 computations shall be made by the Secretary of the Navy at least once each year, and at such times as he may direct, and the resulting numbers in the various grades and ranks, as so computed, shall be held and considered for all purposes as the authorized number of of ficers in such various grades and ranks and shall not be varied between such computations. (Aug. 29, 1916, c. 417, 39 Stat. 577; July 11, 1919, c. 9, 41 Stat. 139.)

"8. Officers excluded from consideration in determining number. For the purpose of determining the authorized number of officers in any grade or rank of the line or of the staff corps, there shall be excluded from consideration those officers carried by law as additional numbers, including staff officers permanently commissioned prior to August 29, 1916, with the rank of rear admiral. (Aug. 29, 1916, c.

417, 39 Stat. 577.)"

Under these provisions, once the Secretary makes his mathematical determination the numbers are quite as definitely fixed for each grade as if fixed by Act of Congress, and numbers thereafter added are as clearly in addition to the whole number in all grades as they are additional to the particular grades to which they may be added. It is therefore apparent that officers designated as additional numbers required to be excluded from the computation of the number of officers in each grade are not to be included in computing the aggregate number in all grades, and the conclusion follows mathematically that they are not to be counted in determining whether or not additional officers may be commissioned without exceeding 4 per centum of the total authorized enlisted strength of the active list.

The result is that you may lawfully compute the total authorized number of commissioned officers of the active list of the line of the Navy, exclusive of commissioned warrant officers, at 4 per centum of 137,485, and in determining whether the number of officers thus computed have been commissioned you may exclude officers designated pursuant to law as additional numbers in grade.

Thus concluding, it becomes unnecessary for your present purposes for me to express any opinion upon the question as to whether 14,000 enlisted men temporarily authorized by the Act of July 1, 1918, for instruction in trade schools may be included in the figure, 4 per centum of which is to be taken in computing the number of commissioned officers. This question can not arise until 1931, and will not certainly arise at that time. I may, however, say for your guidance, in contemplating the situation which may arise when the Class of 1931 graduates

from the United States Naval Academy, that this question is left in considerable doubt by the pertinent Acts of Congress, which do not clearly disclose whether or not such men are to be counted in computing the number of commissioned officers. The intention of Congress on this subject is obscure, and it therefore appears most desirable that clarifying legislation be enacted, well in advance of the graduation from the Naval Academy of the Class of 1931. Respectfully,

WILLIAM D. MITCHELL.

To the SECRETARY OF THE Navy.

CONVEYANCE OF FEE TO GOVERNMENT WITH RESERVATION OF SUBSURFACE RIGHTS FOR RAILROAD PURPOSES

In the proposed acquisition by the Government of certain land in New York City for a post-office site, the real ownership of which is now in the Pennsylvania Railroad & Tunnel Company, though the record title is in the name of a subsidiary corporation, held, upon the assumptions herein made, that the corporation which now owns the property has the power to convey the fee, reserving to the railroad company the use of the subsurface for the operation of its railroad and for station purposes, to any person or corporation or to the Government, and that such a conveyance need not limit the use of the property to railroad purposes.

DEPARTMENT OF JUSTICE,

April 22, 1930.

SIR: I have the honor to acknowledge receipt of your letter of February 10, 1930, in which you request my opinion on certain questions arising in connection with the acquisition by the Government of land fronting on Ninth Avenue, between Thirty-first and Thirty-third Streets, New York City, on which it is proposed to construct a new building, adjacent to the present post-office building, in which to handle the increased postal business of that city.

You state that the real ownership of the property is now in the Pennsylvania Railroad & Tunnel Company, though the record title is in the name of a subsidiary corporation and was originally acquired by purchase by a railroad company, which was apparently a predecessor in the chain of title; that the whole of the property has been excavated for

a number of feet below the surrounding street levels, and is used for the tracks of the railroad company; that it is proposed to acquire the fee to the property, subject to the right of the railroad company to use the subsurface for the operation of its railroad and for station purposes; and that the contemplated Federal building is to be constructed on an elevated platform, supported on piers or columns, located between the tracks of the railroad company.

You further state that the railroad company has submitted a proposal for the sale to the Government of the fee of this property, subject to such use of the subsurface, but that the Director of the Budget calls in question the power of the railroad company, or the present record owner, to convey the fee to any purchaser free from the restriction of its use to railroad or station purposes, or purposes incidental thereto. After stating these facts, you request my opinion upon the following questions:

"(1) Whether the Pennsylvania Railroad and Tunnel Company, or its grantor [grantee?], has such title as will enable them to convey to the Government the fee to said property for a Post Office site, subject to an easement to use it for its railroad and station purposes.

"(2) Whether said company has the power itself to use, or to grant to any other persons or corporations or to the Government the right to use the property for purposes not connected with or incidental to the purposes named in the attached franchise."

These questions, taken literally, are so broadly phrased that I could not give an opinion upon them without a complete abstract of the title and knowledge of other facts with which you have not furnished me. From your letter and the papers accompanying it, however, I gather that the particular question upon which you desire my opinion is the more narrow one arising from the doubts expressed by the Director of the Budget, in connection with certain appropriations to be made for the purchase of this property, with respect to the uses for which the subsidiary company is authorized to convey the land. If the subsidiary company has power to convey the land to any person for any purpose, then in proceedings to condemn the land it would be entitled to receive its fair market value, and in purchasing the land the

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