dent may rely on it, he never will receive a notification of final consent to the appointment. The President would never be able to rely on any notification and would be obliged to inform himself as best he might as to whether the Senate had finally consented to the appointment.

It has been suggested that even though a notification of the confirmation has been sent by the Senate to the President in advance of the expiration of the period allowed for reconsideration, it is subject to recall at the pleasure of the Senate without regard to what the President has done in reliance on it, and that this is implied in the provision in paragraph 3 of Rule XXXVIII to the effect that where a motion for reconsideration is made it shall be accompanied by a motion to request the President to return the notification. The fallacy of that argument rests in the assumption that paragraph 3 contemplates that the notification is under all circumstances subject to recall during the reconsideration period. This rule assumes that a request for a return of the notification may be effective if it reaches the President before he has made the appointment. In that case he would, no doubt, comply with the request. It also assumes that where nominations have been rejected and the President consequently makes no appointments, there is no difficulty about recalling the notification. It is consistent, however, with the idea that the request for return of the notification will be too late if it fails to reach the President before the appointment is made. Senate practice lends weight to these conclusions.

The position that the Senate did consent that these appointments be immediately made, subject to revocation on reconsideration by the Senate, is wholly untenable. That would allow the Senate to encroach upon executive functions by removing an officer within a limited time after his appointment because of dissatisfaction with his official acts. Any rule that provided for such a course would be void. The consent required by the Constitution is a consent absolute and irrevocable when acted on by the Executive. With such a condition attached it would be a case not of a void condition but of an invalid appointment. Either these appointments are valid because made with the unqualified con

sent of the Senate or they are void. There is no middle ground.

Ordinarily the Senate is the judge of its own rules, but where it makes a retroactive interpretation applicable to past transactions which involve action of the executive branch of the Government, the question becomes a legal one and open to judicial inquiry. I can not escape the conclusion that, fairly construed, the rules of the Senate contemplate that where it orders notification of the Senate's consent to an appointment to be forthwith transmitted to the President without waiting for the expiration of the period for reconsideration, that action is intended as a deliberate expression to the President of the Senate's unqualified consent to the immediate appointment, and that it amounts to a decision by the Senate, not under suspension of its rules but in accordance with them, to place reconsideration beyond its power if the President should act and make the appointment before a request of the Senate for a return of the papers reaches him.

I am of the opinion, therefore, that what transpired in this case amounted to an expression by the Senate of its consent to these appointments and that the appointments were constitutionally made and became effective; and that the return of the papers to the Senate would serve no lawful purpose, because no action which the Senate could now take would disturb or operate to revoke the appointments.

Respectfully,

To the PRESIDENT.

WILLIAM D. MITCHELL.

ELIGIBILITY OF RETIRED ARMY OFFICER FOR THE OFFICE OF COMMISSIONER OF THE DISTRICT OF COLUMBIA

A retired Army officer, who has the qualifications of citizenship and residence specified in section 2 of the Act of June 11, 1878 (20 Stat. 103), is eligible for appointment to the office of Commissioner of the District of Columbia

DEPARTMENT OF JUSTICE,
March 4, 1930.

SIR: I am transmitting herewith, for your information, a memorandum prepared in this Department, giving the

NOTE. The publication of this opinion was temporarily withheld.

material on which was based my informal opinion to you of January 20th, last, that retired Army officers are eligible to appointment as Commissioners of the District of Columbia, provided they have the qualifications of citizenship and residence specified in the Act.

Further review of the pertinent statutes has tended to confirm the opinion heretofore expressed.

Respectfully,

To the PRESIDENT.

WILLIAM D. MITCHELL.

DEPARTMENT OF JUSTICE,

March, 3, 1930.

MEMORANDUM IN RE ELIGIBILITY OF A RETIRED ARMY OFFICER TC HOLD THE POSITION OF COMMISSIONER OF THE DISTRICT OF COLUMBIA

The question under consideration is whether a retired Army officer is eligible for appointment to the office of Commissioner of the District of Columbia, assuming that he has the qualifications of citizenship and actual residence in the District for three years next before his appointment, as specified in the Act relating to the District of Columbia. The question otherwise stated is whether a Commissioner having those qualifications is not appointed from "civil life" within the meaning of that phrase as used in the District of Columbia Act if he is a retired Army officer.

The Act of 1878, being the Act providing a permanent form of government for the District of Columbia (20 Stat. chap. 180, p. 103), contains the following provisions:

"SEC. 2. That within twenty days after the approval of this act the President of the United States, by and with the advice and consent of the Senate, is hereby authorized to appoint two persons, who, with an officer of the Corps of Engineers of the United States Army, whose lineal rank shall be above that of captain, shall be Commissioners of the District of Columbia, and who, from and after July first, eighteen hundred and seventy-eight, shall exercise all the powers and authority now vested in the Commissioners of said District, except as are hereinafter limited or pro

vided, and shall be subject to all restrictions and limitations and duties which are now imposed upon said Commissioners. The Commissioner who shall be an officer detailed, from time to time, from the Corps of Engineers, by the President, for this duty, shall not be required to perform any other, nor shall he receive any other compensation than his regular pay and allowances as an officer of the Army. The two persons appointed from civil life shall, at the time of their appointment, be citizens of the United States, and shall have been actual residents of the District of Columbia for three years next before their appointment, and have, during that period, claimed residence nowhere else, and one of said three Commissioners shall be chosen president of the Board of Commissioners at their first meeting, and annually and whenever a vacancy shall occur, thereafter; and said Commissioners shall each of them, before entering upon the discharge of his duties, take an oath or affirmation to support the Constitution of the United States, and to faithfully discharge the duties imposed upon him by law; and said Commissioners appointed from civil life, shall each receive for his services a compensation at the rate of five thousand dollars per annum, and shall, before entering upon the duties of the office, each give bond in the sum of fifty thousand dollars, with surety as is required by existing law. The official term of said Commissioners appointed from civil life shall be three years, and until their successors are appointed and qualified; but the first appointment shall be one Commissioner for one year and one for two years, and at the expiration of their respective terms their successors shall be appointed for three years. Neither of

said Commissioners, nor any officer whatsoever of the District of Columbia, shall be accepted as surety upon any bond required to be given to the District of Columbia; nor shall any contractor be accepted as surety for any officer or other contractor in said District."

It will be noted that in enumerating the qualifications of the two Commissioners other than the Engineer, Congress did not specify that they should be civilians. It merely referred to them as "the two persons appointed from civil life." It assumed that they would be appointed from civil life. It

must have made that assumption because of some other statute. Therefore, in order to ascertain what was meant by the phrase "civil life" it is necessary to know what was the state of the law at that time respecting eligibility to civil posts of retired and active officers. If the law then disqualified retired officers, then Congress used the words "civil life" in the sense which would exclude retired officers. If, on the other hand, retired officers, returned to civil pursuits, were eligible, but active officers not, Congress no doubt used the words "civil life" as excluding only officers in active military service. To interpret this statute it is necessary to review the state of the law on these matters as of the date of the passage of the Act of 1878. The Act relating to the District of Columbia enacted next preceding the passage of the Act of 1878, above quoted, was the Act of June 20, 1874 (18 Stats., chap. 337, p. 116). That Act provided in section 2:

"SEC. 2. That the President of the United States, by and with the advice and consent of the Senate, is hereby authorized to appoint a commission, consisting of three persons, who shall, until otherwise provided by law, exercise all the power and authority now lawfully vested in the governor or board of public works of said District, except as hereinafter limited."

The Act did not specify any qualifications for the Commissioners. Section 3 of that Act provided:

"SEC. 3. That the President of the United States shall detail an officer of the Engineer Corps of the Army of the United States, who shall, subject to the general supervision and direction of the said board of commissioners, have the control and charge of the work of repair and improvement of all streets," etc.

The Act also provided:

"He shall receive no additional compensation for such services. And he shall not be deemed by reason of anything in this act contained to hold a civil office under the laws of the United States."

As will be shown hereafter, at the time of the enactment of that statute retired Army officers were eligible to the office of the civil post of Commissioner of the District of Colum