phrase authorized enlisted strength,' as applied to the personnel of the Navy, shall mean the total number of enlisted men of the Navy authorized by law, exclusive of the Hospital Corps, apprentice seamen, those sentenced by courtmartial to discharge, those detailed for duty with Naval Militia, those furloughed without pay, enlisted men of the Flying Corps, and those under instruction in trade schools: Provided further, That the number of enlisted men for instruction in trade schools shall not at any time exceed fourteen thousand, which number is hereby temporarily authorized: Provided further, That the President is authorized, at any time during the period of the present war, when in his judgment it becomes necessary, temporarily to increase the authorized enlisted strength of the Navy, as provided for herein, by the addition of fifty thousand men." (40 Stat. 714.)

The Act of July 1, 1918, continued in effect the provisions for temporary appointment of officers based on the temporary increase in enlisted strength. (Sec. 4, as amended, 40 Stat. 715.) Section 8 of the Act of May 22, 1917, providing that such temporary appointments should continue in force not later than six months after the termination of the war, was neither amended nor repealed.

It is entirely clear from the express language of the Act of July 1, 1918, that the instruction of 14,000 men in the trade schools was temporarily authorized. The words of the second proviso, "That the number of enlisted men for instruction in the trade schools shall not at any time exceed fourteen thousand, which number is hereby temporarily authorized," leave no room for any other construction. Under section 4 of the original Act of May 22, 1917, and as amended by the Act of July 1, 1918, only temporary appointments of officers could be predicated upon the temporary increases in enlisted strength. Consequently these 14,000 men by express provisions of both statutes could only be counted as a basis for temporary commissions, which under the provisions of section 8 of the original Act of May 22, 1917, could not continue in force beyond the expiration of six months after the termination of the war. To count these 14,000 men in computing the permanent commissioned strength of the Navy would do violence to these express provisions.

When, in July 1919, Congress dealt with the reduction of the enlisted strength of the Navy to a peace-time basis, the distinction between the temporary increases made during the war and the permanent commissioned strength of the Regular Navy was sharply emphasized, by expressly providing for temporary increases above the permanent enlisted strength of 131,485 during specified periods; that is, for 241,000 men from July 1, 1919, to September 30, 1919; 191,000 men from October 1, 1919, to December 31, 1919; and 170,000 men from January 1, 1920, and expressly providing that these temporary figures should include the men under instruction in trade schools, adding, however, "That nothing herein shall be construed as affecting the permanent, commissioned, or enlisted strength of the Regular Navy as authorized by existing law." (Act of July 11, 1919, c. 9, 41 Stat. 131, 137-138.)

I find nothing in any subsequent statute to qualify the conclusion that the 14,000 men authorized for instruction in the trade schools by the Act of July 1, 1918, being temporarily authorized, can not be counted in computing the permanent commissioned strength of the Navy.

Subsequent to my opinion of May 19, 1930, above referred to, Congress passed the Navy Appropriation Act of June 11, 1930 (46 Stat. 556, 565), which specified the number of line officers of the active list therein provided for as "not to exceed five thousand, four hundred and ninety-nine." Congress thus adopted the conclusions expressed in my opinion of May 19, 1930, and further indicated that the 14,000 men authorized for instruction in the trade schools should be excluded from the computation of commissioned officers. When the Navy Appropriation Act for the succeeding year was under consideration, the House Committee on Appropriations reported a naval appropriation bill (H. R. 16969) which also included specific reference to the number of commissioned officers of the active list of the line as 5,499. In its report this committee said (H. R. 2551, 71st Cong., 3d sess., p. 7):

"The commissioned line officer strength of the Navy, under the law as construed since 1916, is 4 per cent of the authorized enlisted strength of 131,485 plus 6,000 apprentice seamen. The Navy Department recently has been seeking

to have the Attorney General determine the meaning of the several statutes which together fix the authorized enlisted strength of the Navy, particularly to decide whether or not the authorized number of commissioned line officers should be increased on account of the 14,000 enlisted men temporarily authorized by the act of July 1, 1918, for instruction in trade schools. Such a construction would increase the commissioned line officer strength by 560. The Attorney General has declined to pass upon the question and has taken the sound position, in the judgment of the committee, that the department should look to Congress and not to him for raising the strength, which has been generally understood to be 5,499 since 1916."

The debates in Congress upon this bill show that the provision limiting appropriations to 5,499 line officers on the active list was eliminated so that the graduates of the Naval Academy in the class of 1931 would certainly receive commissions, and also "to permit the Attorney General to interpret the law as already enacted." (Cong. Rec., vol. 74, pp. 4727-4746, 5616, 5618.)

The action of Congress in specifying the number of line officers in the Navy Appropriation Act of June 11, 1930, suggests that Congress did not intend to permit the number of commissioned officers of the active list of the line to be increased by including the 14,000 enlisted men temporarily authorized for instruction in trade schools by the Act of July 1, 1918, in making the computation necessary to determine the total number of commissioned officers of the active list of the line. In view of the discussion which preceded the adoption of the Navy Appropriation Act of February 28, 1931, it is clear that the elimination from that Act of a similar provision specifying the number of officers of the active list of the line did not show an intent on the part of Congress to have the 14.000 trade-school men included in making the computation.

The fact that reference is made to men in trade schools in the various Naval Appropriation Acts is of no significance, for such Acts simply contain convenient classifications and do not show any intention on the part of Congress that by such classifications the number of commissioned officers is to be increased above that authorized by law, or that the

Act of July 1, 1918, temporarily authorizing 14,000 enlisted men for instruction in trade schools was permanent legislation. Such appropriations are only for men actually receiving instruction in trade schools and who would also be covered by the appropriation for enlisted men.

I have considered the Act of March 3, 1931 (46 Stat. 1482), but its provisions do not seem to me to affect the question which you have asked.

In my opinion, in computing the total number of commissioned officers of the active list of the line of the Navy, exclusive of commissioned warrant officers, you are not permitted to apply the four per centum fixed by law as the basis for such computation to the 14,000 enlisted men temporarily authorized for instruction in trade schools, in addition to the number of 137,485 comprising the permanent authorized enlisted strength of 131,485 plus 6,000 apprentice

seamen.

Respectfully,

WILLIAM D. MITCHELL.

To the SECRETARY OF THE NAVY.

CIVIL SERVICE RETIREMENT ACT-CERTIFICATION

By section 2 of the Act of May 29, 1930 (46 Stat. 469), providing for certification of Government employees for service beyond the retirement age, the responsible officer is required, upon being satisfied that the applicant is physically fit and has been efficient and competent during the two years next preceding his application for continuance in the civil service, to certify to the Civil Service Commission that the continuance of such employee would be advantageous to the public service. This he must do "as of course upon acceptable proof of the applicant's physical fitness and a showing of his efficiency and competency based upon the information specified in the statute.*

Where the Civil Service Commission approves and certifies the continuance of an employee in the service, it must grant an extension for two years.

DEPARTMENT OF JUSTICE,

June 10, 1931.

SIR: I have the honor to comply with your request of February 10, 1931, for my opinion upon certain questions

*NOTE. AS to the point that the head of the Department must form his own judgment and is not required to make the certificate unless after examination of the employee's whole record he is of the opinion that it is such as to justify his retention, see 35 Op. 159.

propounded by the Civil Service Commission concerning the construction to be placed upon the language of section 2 of the Act of May 29, 1930, c. 349, 46 Stat. 468, 469, providing for certification of employees for service beyond the retirement age. The section reads as follows:

"All employees to whom this Act applies shall, on arriving at retirement age as defined in the preceding section, and having rendered fifteen years of service, be automatically separated from the service, and all salary, pay, or compensation shall cease from that date, and it shall be the duty of the head of each department, branch, or independent office of the Government concerned to notify such employees under his direction of the date of such separation from the service at least sixty days in advance thereof: Provided, That if the head of the department, branch, or independent office of the Government in which he is employed certifies to the Civil Service Commission that by reason of his efficiency and willingness to remain in the civil service of the United States the continuance of such employee therein would be advantageous to the public service, such employee may be retained for a term not exceeding two years upon the approval and certification by the Civil Service Commission, and at the end of the two years he may, by similar approval and certification, be continued for an additional term not exceeding two years, and so on: Provided, however, That after August 20, 1930, no employee shall be continued in the civil service of the United States beyond the age of retirement for more than four years, except that where the head of the department or establishment certifies, and the Civil Service Commission agrees, that by reason of expert knowledge and special qualifications the continuance of the employee would be advantageous to the public service, further extensions of two years may be granted.

"Whenever an employee shall make application for such continuation in the civil service, and shall submit acceptable proof of his present physical fitness to perform his work, it shall be the duty of the head of the department, branch, or independent office of the Government concerned to obtain from the immediate superior in the service of such