obligation of the Board which was taken over by the Act transferring contracts and obligations of the Board to the Veterans' Bureau.

I am of the opinion that both of these arguments are beside the mark. They both proceed on the assumption that by the terms of the lease a definite personal obligation was imposed on the lessee which bound it for the full term of the lease to maintain the property as a home for disabled veterans, an obligation the breach of which would subject the lessee to a money claim for breach of covenant. This assumption does not appear to be justified. There is no express personal covenant in the lease on the part of the lessee to maintain the property as a home for disabled veterans. The lease merely provides that it is made without rental or charge but "on condition" that such camp shall be maintained by the lessee during the term of the lease as a home for veterans. There is no basis in my opinion for the assumption which has been made that there was any intention on the part of the lessor or lessee to subject the lessee to a personal claim for failure to perform this condition. The terms of the lease and the conditions under which it was executed show that the parties intended nothing more than that in case of failure of the lessee to perform the condition the property, together with the right to occupy and use it, would revert to the State of New York. The lessee is bound, so long as it remains in possession under the lease, to maintain the property as a home for the veterans, but it is at liberty at any time to cease to so maintain it and in that case to surrender possession to the State of New York. Failure to perform the condition does not leave the lessee subject to any obligation. The effect of the transaction was to give the lessee the right to occupy and use the premises as a home for veterans as long as it saw fit to do so, not beyond the term specified, and gave the State of New York the right to resume possession and use of the property at any time the lessee failed to perform the condition. So long as Congress continues to appropriate money for the maintenance of the home and thus authorizes compliance with the condition in the lease the United States may retain possession. It is thus apparent that no obligation was created for the future pay

ment of money in excess of appropriations made from time to time by Congress, and that no contract or obligation was undertaken by the Board in violation of the statutes above set forth. Material in support of this construction of the lease is found in negotiations leading up to its execution. Under date of February 23, 1929, the Attorney General of the State of New York wired the Chief Coordinator in care. of the Veterans' Hospital at Bath, New York, as follows: "In my opinion we can make lease to you for a term of years with the provision that premises be used as camp or home for veterans during time of lease STOP If desired lease can contain provision authorizing the United States to denounce lease at its pleasure and in my opinion the rights of veterans in the home must be subject to reasonable rules and regulations similar to those now in force STOP Upon advice that Department of Justice approves such lease we will be glad to have same prepared I am authorized to say that this meets the approval of the Governor and Adjutant General."

On the same day the Veterans' Bureau replied as follows: "Please prepare lease on Bath home in accordance with your opinion in radio today STOP This will be submitted to Department of Justice and advice forwarded."

This interchange shows expressly that it was the intention that the United States might "denounce" the lease at its pleasure and the instructions were to prepare a lease to express that understanding. If the lease as drawn did not accomplish that result it is subject to reformation. Furthermore, while the Board of Managers of the National Home for Disabled Volunteer Soldiers had authority to receive private donations, its operations were supported largely by appropriations from the Federal Treasury. It had no funds available to satisfy an obligation to maintain this property for ten or forty years in the absence of appropriations by Congress. It is inconceivable that the Board could have intended in making this lease or entering into the extension of the lease to undertake an inescapable obligation to maintain this property for a long term of years, without any assurance that Congress would appropriate the money for it, and it is not reasonable to suppose that the

Board would have attempted to commit the Congress to provide for the maintenance of the property for such a long period, or that the State of New York intended to exact such a commitment. These considerations lead, I think, inevitably to the conclusion that the parties to the lease did not intend to impose such an obligation, and that the condition in the lease respecting the use of the property by the lessee was intended merely to enable the State of New York to resume possession if the conditions were not complied with, and not to create an obligation on the part of the lessee, breach of which would subject it to a claim for damages.

A further significant circumstance in support of these conclusions is found in the fact that while the lease was dated February 26, 1929, it was not approved by the Board of Managers until March 18, 1929, and meanwhile on March 4, 1929, in the Second Deficiency Act of that date (c. 707, 45 Stat. 1668), Congress appropriated $500,000 for the fiscal year 1929, to remain available until June 30, 1930, for the maintenance of the camp for veterans at Bath. It thus appears that the Board of Managers withheld acceptance of the lease until it had an appropriation available for the first year of operation. The parties must have had in mind that the Board could not discharge an obligation to maintain the property without appropriations from Congress, and that the performance of the condition in the lease for the maintenance of the property as a veterans' home during the term of the lease was wholly dependent on the will of Congress. In determining whether a provision in a lease or deed is a condition (either precedent or subsequent) or covenant, the controlling factor is the intention of the parties as determined from the entire instrument. Kew v. Trainor, 150 Ill. 150, 156; Henry v. Bottling Company, 277 Mo. 508, 513; Graves v. Deterling, 120 N. Y. 447, 455; Langley v. Ross, 55 Mich. 163, 165–166.

In Henry v. Bottling Company, supra, which involved a perpetual lease without rent, the court said (p. 513):

"Much difficulty has been encountered in the attempt to frame arbitrary rules for the classification of conditions and covenants. It is now generally conceded that the safest and

most satisfactory course is to ascertain as near as can be done, the intention of the parties from the instrument they have executed, and then give it such a construction as will best effectuate that intention.”

The entry of the lessee into possession and the expenditure of public moneys in the operation, maintenance, and repair of the property, developed an adequate consideration for what amounted to the grant by the State of New York of an option to the lessee to remain in possession as long as the lessee chose to do so.

I am of the opinion, therefore, that while the lease did not create any obligation upon the lessee it did give the lessee the right to remain in possession of the property so long as the Congress should see fit to appropriate funds to maintain it, not beyond the extended term specified, and that whether or not this right belonged to the United States prior to the Act of July 3, 1930, by virtue of the fact that the National Home for Disabled Volunteer Soldiers was a governmental agency, that Act has operated to vest all the rights of the lessee in the United States.

Respectfully,

WILLIAM D. MITCHELL.

To the ADMINISTRATOR OF VETERANS' AFFAIRS.

CIVIL SERVICE RETIREMENT ACT-CASE OF
MRS. KATHERINE A. GAINES

Section 6 of the Act of May 29, 1930 (46 Stat. 468, 472), providing disability retirement for employees having served five years, is not to be interpreted as authorizing the retirement of Mrs. Katherine A. Gaines, who entered the civil service of the United States in 1917 and continued in such service for nearly thirteen years, but whose service with the Government was terminated prior to the passage of said Act, supra.

DEPARTMENT OF JUSTICE,
December 8, 1931.

SIR: I have the honor to comply with your request of April 16, 1931, for my opinion concerning the proper construction to be placed upon section 6 of the Act of May 29, 1930, c. 349, 46 Stat. 468, 472, as applied to the case of Mrs.

Katherine A. Gaines, who entered the civil service of the United States in 1917 and resigned on March 7, 1930, having served nearly thirteen years. The pertinent language of the section is copied below:

"SEC. 6. Any employee to whom this Act applies who shall have served for a total period of not less than five years, and who, before becoming eligible for retirement under the conditions defined in the preceding sections hereof, becomes totally disabled for useful and efficient service in the grade or class of position occupied by the employee, by reason of disease or injury not due to vicious habits, intemperance, or willful misconduct on the part of the employee, shall upon his own application or upon the request or order of the head of the department, branch, or independent office concerned, be retired on an annuity computed in accordance with the provisions of section 4 hereof: No claim shall be allowed under the provisions of this section unless the application for retirement shall have been executed prior to the applicant's separation from the service or within six months thereafter: Provided, That any employee who heretofore has failed to file an application for retirement within six months after separation from the service, may file such application within three months after the effective date of this Act.

* *

A corresponding paragraph of the original Retirement Act, approved May 22, 1920, c. 195, 41 Stat. 614, 616 (U. S. C., Title 5, sec 710), provided in the following language for disability retirement after fifteen years of service.

"SEC. 5. That any employee to whom this Act applies who shall have served for a total period of not less than fifteen years, and who, before reaching the retirement age as fixed in section 1 hereof, becomes totally disabled for useful and efficient service by reason of disease or injury not due to vicious habits, intemperance, or willful misconduct on the part of the employee, shall upon his or her own application or upon the request or order of the head of the department, branch, or independent office concerned, be retired, on an annuity under the provisions of section 2 hereof.

*

The entire statute was revised and reenacted by the Act of July 3, 1926, c. 801, 44 Stat. 904, 907, and again by the Act of May 29, 1930, supra. In the 1926 revision there was