Page images
PDF
EPUB

awards, relating to credits of amounts recovered under the provisions of the Trading with the Enemy Act, was expressly designed to bring the awards within the provisions of section 4 (g). It is only by the most formal reasoning that it can be said that the amounts received have not been credited upon the award. In order to avoid a result which is contrary to the purpose of the law, one must, if possible, adopt constructions consistent with the statutory purpose.

Accordingly, section 4 (g) should be interpreted so as to permit the credits upon the award, as directed by the Commission, and not to require the deduction of the amount of these credits from payments to be made from the Special Deposit Account. Any other interpretation, as this case very well illustrates, would make priority of payment between claimants of equal rank depend upon whether they recovered their awards before or after receipt of payments from the Alien Property Custodian-a result so contrary to the statutory purpose as to compel the interpreta tion which I have adopted.

I am therefore of the opinion that the amounts paid to each of these claimants by the Alien Property Custodian subsequent to the entry of the awards should be considered as payments "credited by the Mixed Claims Commission in making its award," and should be deducted from the prin cipal amount of the award in each case. This reduces the amount of each award to an amount which does not exceed $100,000, and you are accordingly authorized, under section 4 (c), (3), to make payment to each of the claimants without deducting from the amount of such payment the amount of the payments received from the Alien Property Custodian.

Respectfully,

WILLIAM D. MITCHELL.

To the SECRETARY OF THE TREASURY.

141183°-32-VOL 36- -27

AIRPLANES ESTIMATES FOR APPROPRIATIONS

The War Department, in preparing estimates for future appropriations, is justified in treating as unserviceable, and exclusive of the 1,800 serviceable airplanes authorized by section 8 of the Air Corps Act of July 2, 1926 (44 Stat. 783), those in a condition which require general overhauling and repair at the Air Corps depots.

[ocr errors]

DEPARTMENT OF JUSTICE,

May 13, 1931. Sir: I have the honor to acknowledge receipt of letter of April 20 asking my opinion as to whether the War Department, in preparing estimates for future appropriations, is justified in treating unserviceable planes as not included in the 1,800 airplanes which the Secretary of War is authorized to maintain by section 8 of the Air Corps Act of July 2, 1926, c. 721, 44 Stat. 780, 783-784, which reads as follows: EQUIPMENT.-The Secretary of War is hereby authorized to equip and maintain the Air Corps with not to exceed one thousand eight hundred serviceable airplanes, and such number of airships and free and captive balloons as he may determine to be necessary for training purposes, together with spare parts, equipment, supplies, hangars, and installations necessary for the operation and maintenance thereof. In order to maintain the number specified above, the Secretary of War is hereby authorized to replace obsolete or unserviceable aircraft from time to time: Provided, That the necessary replacement of airplanes shall not exceed approximately four hundred annually: Provided, That the total number of airplanes and airships herein authorized shall be exclusive of those waiting salvage or undergoing experiment or service tests, those authorized by the Secretary of War to be placed in museums and those classified by the Secretary of War as obsolete: And provided further, That the total number of planes authorized in this section shall include the number necessary for the training and equipment of the National Guard and the training of the Organized Reserves as may be determined by the Secretary of War."

You inform me that on January 11, 1930, you promulgated the following definitions relating to the serviceability of airplanes for the guidance of the Air Corps in the ad

ministration of that Act in all cases where the question of the serviceability of airplanes arises:

"(a) 'Serviceable airplanes include those fit for immediate service in the air and those which are economically repairable locally.

"(b) Unserviceable airplanes include those not economically repairable locally and which must be sent to Air Corps depots for general repair or overhaul. Upon completion of such repair or overhaul at depots, such airplanes again become serviceable and must again be counted as part of the 1,800 serviceable airplanes provided by the Air Corps Act of July 2, 1926.""

Your request for an opinion refers to an opinion of the Judge Advocate General of the Army, dated April 17, 1931, copy of which is before me, and I have referred to that for information as to the precise questions you are interested in. It appears that the ultimate question in the case is as to what constitutes an unserviceable airplane or possibly whether the standards for determining what airplanes are serviceable, contained in the definitions promulgated by you January 11, 1930, are consistent with the terms of the statute.

Congress has not defined what it meant by a serviceable airplane. The statute leaves to you the power to lay down reasonable tests of serviceability. You define as unserviceable, airplanes which are so badly out of repair that they may not be economically repaired locally and require general repairing or overhauling at one of the Air Corps depots, treating as serviceable those airplanes which, although out of repair and not fit for immediate service, do not require general repair or overhauling at the Air Corps depots.

I see no ground for an opinion that these tests of serviceability are unreasonable or arbitrary or not in accordance with the purpose of the statute. Certainly a plane which requires extensive overhauling before it may properly be used is not serviceable while in that condition and it is sent to the Air Corps depot for the very purpose of making it serviceable.

I am in entire accord with the views of the Judge Advocate General and am of the opinion that in preparing your

estimates for appropriations you are justified in treating as unserviceable, and exclusive of the eighteen hundred authorized serviceable planes, those in a condition which require general overhauling and repair at the Air Corps depots.

Respectfully,

WILLIAM D. MITCHELL.

To the SECRETARY OF WAR.

RECEIPT BY VETERAN OF COMPENSATION AND DISABILITY

ALLOWANCE

Payment of the disability allowance provided by section 11 of the Act of July 3, 1930, entitled "An Act to amend the World War Veterans' Act, 1924, as amended" (46 Stat. 995), is authorized, even though the recipient of such allowance is now receiving compensation under the Federal Employees' Compensation Act (39 Stat. 742) for the same injury upon which his application for the disability allowance is predicated.

DEPARTMENT OF JUSTICE,

June 1, 1931.

SIR: I have the honor to refer to your letter of April 15, 1931, requesting my opinion whether a veteran of the World War who is receiving compensation under the United States Employees' Compensation Act of September 7, 1916, c. 458, 39 Stat. 742 (U. S. C., title 5, sec. 751 et seq.) may be paid the disability allowance provided in the amendment of July 3, 1930, to section 200 of the World War Veterans' Act of 1924, as amended, c. 849, 46 Stat. 991, 995 (U. S. C., Sup. IV, title 38, sec. 471) for a disability resulting from the same injury for which he is receiving compensation from the United States Employees' Compensation Commission.

In connection with the above request you have submitted, by supplemental letter of May 6, 1931, the case of Simon P. Miller, who enlisted in the military service prior to November 11, 1918, served ninety days or more during the World War, and was honorably discharged on December 4, 1918. Mr. Miller filed his application for disability allow

ance on November 17, 1930. He was exempt from the payment of a Federal income tax for the year preceding the filing of his application. His application is based upon the same injury for which he is now receiving compensation under the Federal Employees' Compensation Act.

Section 11 of the Act of July 3, 1930, supra, entitled "An Act to amend the World War Veterans' Act, 1924, as amended," provides in part:

"That section 200 of the World War Veterans' Act, 1924, as amended (section 471, title 38, U. S. Code), be hereby amended to read as follows:

"On and after the date of the approval of this amendatory Act any honorably discharged ex-service man who entered the service prior to November 11, 1918, and served ninety days or more during the World War, and who is or may hereafter be suffering from a 25 per centum or more permanent disability, as defined by the director, not the result of his own willful misconduct, which was not acquired in the service during the World War, or for which compensation is not payable, shall be entitled to receive a disability allowance at the following rates: 25 per centum permanent disability, $12 per month; 50 per centum permanent disability, $18 per month; 75 per centum permanent disability, $24 per month; total permanent disability, $40 per month. No disability allowance payable under this paragraph shall commence prior to the date of the passage of this amendatory Act or the date of application therefor, and such application shall be in such form as the director may prescribe: Provided, That no disability allowance under this paragraph shall be payable to any person not entitled to exemption from the payment of a Federal income tax for the year preceding the filing of application for such disability allowance under this paragraph. In any case in which the amount of compensation hereafter payable to any person for permanent disability under the provisions of this Act is less than the maximum amount of the disability allowance payable for a corresponding degree of disability under the provisions of this paragraph, then such person may receive such disability allowance in lieu of compensation.

« PreviousContinue »