A-48381, MAY 16, 1933, 12 COMP. GEN. 641

A-48381: May 16, 1933

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AT WHICH TIME THE SENATE WAS NOT IN SESSION. THIS OFFICER WAS AFTER THE CONVENING OF THE CONGRESS NOMINATED FOR APPOINTMENT TO SUCH OFFICE FOR THE PERIOD OF 4 YEARS BEGINNING MARCH 28. WAS CONFIRMED BY THE SENATE. AFTER THAT DATE HE IS NOT ENTITLED TO THE PAY AND ALLOWANCES APPLICABLE TO THE OFFICE OF CHIEF OF INFANTRY. REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF MAJOR GENERAL STEPHEN O. YOU STATE THAT YOU ARE IN DOUBT AS TO WHEN HIS TERM OF OFFICE EXPIRES. IS SECTION 4C OF THE NATIONAL DEFENSE ACT OF JUNE 4. WHICH PROVIDES INSOFAR AS IS HERE MATERIAL: * * * EXCEPT AS OTHERWISE HEREIN PRESCRIBED. WHILE SERVING IN THE REGULAR ARMY AS A COLONEL OF INFANTRY THIS OFFICER WAS APPOINTED MARCH 28.

A-48381, MAY 16, 1933, 12 COMP. GEN. 641

APPOINTMENTS - TERM OF OFFICE - CHIEF OF BUREAU - WAR DEPARTMENT WHERE THE PRESIDENT APPOINTED A QUALIFIED OFFICER OF THE ARMY MARCH 28, 1929, TO BE CHIEF OF INFANTRY, AT WHICH TIME THE SENATE WAS NOT IN SESSION, AND THIS OFFICER WAS AFTER THE CONVENING OF THE CONGRESS NOMINATED FOR APPOINTMENT TO SUCH OFFICE FOR THE PERIOD OF 4 YEARS BEGINNING MARCH 28, 1929, WITH RANK FROM MARCH 28, 1929, AND WAS CONFIRMED BY THE SENATE, AND ISSUED A PERMANENT COMMISSION, AS NOMINATED, HIS TERM OF OFFICE EXPIRED MARCH 27, 1933, AND AFTER THAT DATE HE IS NOT ENTITLED TO THE PAY AND ALLOWANCES APPLICABLE TO THE OFFICE OF CHIEF OF INFANTRY.

COMPTROLLER GENERAL MCCARL TO MAJ. W. O. RAWLS, UNITED STATES ARMY, MAY 16, 1933:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 3, 1933, REQUESTING DECISION WHETHER YOU ARE AUTHORIZED TO MAKE PAYMENT ON A VOUCHER TRANSMITTED THEREWITH IN FAVOR OF MAJOR GENERAL STEPHEN O. FUQUA, UNITED STATES ARMY, COVERING PAY AND ALLOWANCES FOR HIS SERVICES AS CHIEF OF INFANTRY FROM MARCH 28, 1933, TO MARCH 31, 1933. YOU STATE THAT YOU ARE IN DOUBT AS TO WHEN HIS TERM OF OFFICE EXPIRES.

THE STATUTE GOVERNING THE APPOINTMENT AND TERM OF OFFICE OF THE CHIEF OF INFANTRY, UNITED STATES ARMY, IS SECTION 4C OF THE NATIONAL DEFENSE ACT OF JUNE 4, 1920, 41 STAT. 762, WHICH PROVIDES INSOFAR AS IS HERE MATERIAL:

* * * EXCEPT AS OTHERWISE HEREIN PRESCRIBED, CHIEFS AND ASSISTANTS TO THE CHIEFS OF THE SEVERAL BRANCHES SHALL HEREAFTER BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, FOR A PERIOD OF FOUR YEARS * * *. APPOINTMENT AS CHIEF OF ANY BRANCH SHALL BE MADE FROM AMONG OFFICERS COMMISSIONED IN GRADES NOT BELOW THAT OF COLONEL, * * *.

SECTION 17 OF THE SAME ACT, 41 STAT. 769, PROVIDES:

THE INFANTRY SHALL CONSIST OF ONE CHIEF OF INFANTRY WITH THE RANK OF MAJOR GENERAL; * * *.

WHILE SERVING IN THE REGULAR ARMY AS A COLONEL OF INFANTRY THIS OFFICER WAS APPOINTED MARCH 28, 1929, BY THE PRESIDENT TO BE CHIEF OF INFANTRY TO FILL A VACANCY WHICH OCCURRED ON THAT DATE. AS THE SENATE WAS NOT IN SESSION HE WAS GIVEN A RECESS APPOINTMENT, AND HE TOOK THE OATH AND ASSUMED THE DUTIES OF THIS OFFICE ON THE DATE OF HIS APPOINTMENT.

THE CONGRESSIONAL RECORD, VOLUME 71, PART I, AT PAGE 270, SHOWS NOMINATIONS RECEIVED BY THE SENATE APRIL 22, 1929, FOR APPOINTMENTS IN THE REGULAR ARMY, AS FOLLOWS:

TO BE CHIEF OF INFANTRY, WITH THE RANK OF MAJOR GENERAL, FOR THE PERIOD OF FOUR YEARS BEGINNING MARCH 28, 1929, WITH RANK FROM MARCH 28, 1929.

COL. STEPHEN OGDEN FUQUA, INFANTRY, VICE MAJ. GEN. ROBERT H. ALLEN, CHIEF OF INFANTRY, WHOSE TERM OF OFFICE EXPIRED MARCH 27, 1929.

THIS APPOINTMENT WAS CONFIRMED BY THE SENATE MAY 4, 1929, AND A PERMANENT COMMISSION WAS ISSUED MAY 6, 1929, UNDER WHICH IT IS STATED HE WAS APPOINTED "CHIEF OF INFANTRY, WITH THE RANK OF MAJOR GENERAL, FOR THE PERIOD OF 4 YEARS BEGINNING MARCH 28, 1929.'

THE STATUTE DOES NOT FIX ANY TIME AT WHICH THE APPOINTMENT OF CHIEF OF INFANTRY IS TO BE MADE, OR WHEN THE TERM OF OFFICE SHALL BEGIN. THE DURATION OF THE TERM OF OFFICE IS "FOR A PERIOD OF 4 YEARS.' IT IS WELL ESTABLISHED THAT THE TERM OF OFFICE, WHEN NOT SPECIFICALLY FIXED BY STATUTE, BEGINS IN THE CASE OF APPOINTIVE OFFICERS ON THE DATE OF APPOINTMENT. 22 RULING CASE LAW, 550. THE ARGUMENT IS, HOWEVER, ADVANCED THAT THE RECESS APPOINTMENT MADE BY THE PRESIDENT ALONE PURSUANT TO ARTICLE II, SECTION 2, SUBSECTION 3, OF THE CONSTITUTION WAS A TEMPORARY APPOINTMENT, CONSTITUTING A SEPARATE AND DISTINCT TERM OF OFFICE, AND THAT THE NOMINATION OF THE APPOINTEE TO THE SENATE FOR APPOINTMENT, AND AFTER CONFIRMATION BY THE SENATE, THE APPOINTMENT ISSUING THEREON IS A NEW AND PERMANENT APPOINTMENT MADE WITH THE CONSENT OF THE SENATE, AND THAT THE INCUMBENT UNDER SUCH APPOINTMENT BEGINS A NEW TERM RUNNING FROM THE DATE OF SUCH NEW AND PERMANENT APPOINTMENT FOR THE DURATION OF THE PERIOD OF TIME FIXED BY THE STATUTE.

WHILE IT IS INFERRED FROM THE FORM OF NOMINATION IN THE CASE THAT THE PRACTICE IN THE ARMY HAS BEEN TO TREAT THE TERM AS COMMENCING WITH THE DATE FIXED BY THE PRESIDENT'S COMMISSION, THE PRESENT VIEW IS ADVANCED BY REASON OF A PRACTICE SAID TO PREVAIL IN THE NAVY DEPARTMENT REPRESENTED AS BASED ON AN OPINION OF THE ATTORNEY GENERAL, 16 OPS.ATTY.GEN. 656, SUPPORTED BY AN OPINION OF AN EARLIER ATTORNEY GENERAL, 2 OPS.ATTY.GEN. 233, AND THE OPINION OF THE SUPREME COURT IN UNITED STATES V. KIRKPATRICK, 9 WHEAT. 720, AND UNITED STATES V. ECKFORD'S EXECUTORS, 1 HOW. 250. THE TWO CASES IN THE SUPREME COURT INVOLVED LIABILITY OF SURETIES UNDER BONDS GIVEN BY FIDUCIARIES AND THAT, ALSO, WAS THE MATTER INVOLVED IN THE OPINION, 2 OPS.ATTY.GEN. 233. THESE CASES AND THIS OPINION ARE DOUBTFUL AUTHORITY IN THE PRESENT MATTER WHERE THE PURPOSE OF THE STATUTE IS TO LIMIT THE TENURE OF OFFICE DURING THE PERIOD NAMED IN THE STATUTE. THE FACTS IN THE CASE CONSIDERED, 16 OPS.ATTY.GEN. 656, CAN BE READILY DISTINGUISHED FROM THE FACTS IN THIS CASE. THE FACTS AS RECITED ARE THAT AN OFFICER WAS GIVEN A RECESS APPOINTMENT AS CHIEF CONSTRUCTOR OF THE NAVY APRIL 30, 1877, AND HIS NOMINATION WAS SUBMITTED TO THE SENATE OCTOBER 15, 1877, DURING AN EXTRA SESSION OF THE SENATE. THE NOMINATION WAS NOT CONFIRMED DURING THE EXTRA SESSION AND HIS RECESS APPOINTMENT TERMINATED UPON ADJOURNMENT OF THE EXTRA SESSION OF THE SENATE. DURING THE NEXT REGULAR SESSION THE OFFICER WAS AGAIN NOMINATED TO BE CHIEF CONSTRUCTOR "FROM APRIL 28, 1877, AND THIS NOMINATION WAS CONFIRMED APRIL 15, 1878, IN THE SAME TERMS.' BOTH THE TEMPORARY AND REGULAR COMMISSIONS ISSUED CONFORMED TO THE TERMS OF THE NOMINATION AND CONFIRMATION. ON THE ADJOURNMENT OF THE EXTRA SESSION OF THE SENATE, THE OFFICE TO WHICH THE OFFICER HAD BEEN APPOINTED BECAME VACANT AND WAS "OCCUPIED BY OTHERS IN DUE COURSE OF LAW.' THE ATTORNEY GENERAL, ON THESE FACTS, CONCLUDES AS FOLLOWS:

THE LAW OF THE TERM OF THE OFFICE, OF COURSE, CONTROLS SPECIAL LANGUAGE IN THE NOMINATION AND CONFIRMATION. SECTION 421 OF THE REVISED STATUTES MAKES THE TERM OF CHIEF CONSTRUCTOR ONE OF FOUR YEARS FROM THE APPOINTMENT WITH THE CONSENT OF SENATE (2 OPIN. 333 AND 338). THE TERM DURING WHICH MR. EASBY SERVED UNDER THE TEMPORARY APPOINTMENT WAS, BY LAW, A DIFFERENT TERM FROM THAT WHICH COMMENCED IN APRIL 1878 (1 HOW. 250).

IT IS TO BE NOTICED THE OFFICER WAS OUT OF OFFICE FOR A PORTION OF THE PERIOD COVERED BY HIS NOMINATION, CONFIRMATION, AND COMMISSION, AND THERE WOULD SEEM TO BE NO DOUBT THAT THE CONCLUSION REACHED WAS CORRECT. BUT CITED IN SUPPORT OF THE BROAD STATEMENT AS TO THE LAW ABOVE QUOTED IS THE ECKFORD CASE, THE FACTS OF WHICH ARE RECITED BY THE COURT AS FOLLOWS, PAGE 257:

SWARTWOUT WAS APPOINTED COLLECTOR BY THE PRESIDENT, THE 1ST OF MAY 1829; AND CONTINUED TO SERVE UNDER SUCH APPOINTMENT UNTIL THE 28TH OF MARCH ENSUING. ON THE 29TH MARCH 1830, HIS NOMINATION WAS SANCTIONED BY THE SENATE AND HE CONTINUED TO SERVE IN THE OFFICE OF COLLECTOR FOUR YEARS. ON THE 29TH MARCH, 1834, HE WAS AGAIN APPOINTED BY THE PRESIDENT AND SENATE, FOR THE TERM OF FOUR YEARS.

UNDER EACH OF THE ABOVE APPOINTMENTS HE GAVE BOND AND SECURITY, WHICH, AFTER RECITING HIS APPOINTMENT OF COLLECTOR, ETC., PROVIDED: "NOW, THEREFORE, IF THE SAID SAMUEL SWARTWOUT, HATH TRULY AND FAITHFULLY EXECUTED AND DISCHARGED, AND SHALL CONTINUE TRULY AND FAITHFULLY TO DISCHARGE, ALL THE DUTIES OF THE SAID OFFICE ACCORDING TO LAW, THEN," ETC.

THE BOND ON WHICH THIS SUIT WAS BROUGHT IS DATED THE 22D JUNE 1830.

UNDOUBTEDLY, THE LIABILITY OF THE SURETIES WAS LIMITED TO THE TERMS OF THE BOND AND UNDER THE APPOINTMENT NAMED IN THE BOND, AND THE CASE DOES NOT APPEAR TO BE DECISIVE OF THE QUESTION NOW UNDER CONSIDERATION, ALTHOUGH IT IS TO BE NOTED THAT ADMINISTRATIVELY THE RECESS APPOINTMENT WAS TREATED AS NOT A PART OF THE 4-YEAR TERM.

IN THE KIRKPATRICK CASE THE LAW CREATED THE OFFICE OF COLLECTOR OF DIRECT TAXES WITHOUT DEFINITE TERM AND SPECIFICALLY AUTHORIZED THE PRESIDENT TO APPOINT "DURING THE RECESS OF THE SENATE BY GRANTING COMMISSIONS WHICH SHALL EXPIRE AT THE END OF THEIR NEXT SESSION.' THE COURT RECITED THE FACTS OF THE CASE AS FOLLOWS (P. 731, ET SEQ.):

* * * THE COLLECTOR, WHOSE BOND IS IN QUESTION, WAS APPOINTED BY THE PRESIDENT, ON THE 11TH OF NOVEMBER, 1813, AND, BY THE TERMS OF HIS COMMISSION, HE WAS TO HOLD HIS OFFICE DURING THE PLEASURE OF THE PRESIDENT,"AND UNTIL THE END OF THE NEXT SESSION OF THE SENATE OF THE UNITED STATES, AND NO LONGER.' THE BOND IN QUESTION WAS GIVEN BY THE COLLECTOR, AND BY THE DEFENDANTS, AS HIS SURETIES, ON THE 4TH OF DECEMBER OF THE SAME YEAR; AND IT FOLLOWS, IN ITS TERMS, THE REQUIREMENTS OF THE ACT OF CONGRESS. ON THE 24TH OF JANUARY 1814, THE PRESIDENT, WITH THE ADVICE AND CONSENT OF THE SENATE, REAPPOINTED THE PARTY COLLECTOR, ETC.; AND BY HIS NEW COMMISSION, HE WAS TO HOLD HIS OFFICE "DURING THE PLEASURE OF THE PRESIDENT OF THE UNITED STATES FOR THE TIME BEING.' NO NEW BOND WAS TAKEN UNDER THIS COMMISSION. * * *

THE OPINION OF THE COURT (P. 733, ET. SEQ.) ON THE POINT IS AS FOLLOWS:

THE ACT UNDER WHICH THIS APPOINTMENT WAS MADE AUTHORIZES THE PRESIDENT, IN THE RECESS OF THE SENATE, TO MAKE APPOINTMENTS, BY GRANTING COMMISSIONS, WHICH SHALL EXPIRE AT THE END OF THEIR NEXT SESSION. THE FIRST COMMISSION IS, AS HAS BEEN ALREADY STATED, IN CONFORMITY TO THIS PROVISION OF THE ACT, AND IS BY EXPRESS TERMS, LIMITED TO CONTINUE TO THE "END OF THE NEXT SESSION OF THE SENATE, AND NO LONGER.' IT FOLLOWS, THEREFORE, BOTH BY THE ENACTMENT OF LAW AND THE FORM OF THE GRANT, THAT THE FIRST COMMISSION MUST HAVE EXPIRED OF ITSELF AT THAT PERIOD; AND, AS THE NEXT SESSION OF THE SENATE ENDED IN APRIL 1814, THAT IS THE UTMOST EXTENT TO WHICH IT COULD REACH. THE BOND IN QUESTION WAS GIVEN WITH EXPRESS REFERENCE TO THIS COMMISSION; AND ITS OBLIGATORY FORCE WAS, CONSEQUENTLY, CONFINED TO ACTS DONE WHILE THAT COMMISSION HAD A LEGAL CONTINUANCE, AND COULD NOT GO BEYOND IT. AND HERE WOULD HAVE BEEN THE NATURAL TERMINATION OF THE LIABILITY. BUT, IN THE MEANTIME, A NEW APPOINTMENT WAS MADE BY THE PRESIDENT, WITH THE ADVICE AND CONSENT OF THE SENATE; AND AS SOON AS THAT WAS ACCEPTED BY THE COLLECTOR, IT WAS A VIRTUAL SUPERSEDING AND SURRENDER OF THE FORMER COMMISSION. THE TWO COMMISSIONS CANNOT BE CONSIDERED AS ONE CONTINUING APPOINTMENT, WITHOUT MANIFEST REPUGNANCY. THE COMMISSIONS ARE NOT ONLY DIFFERENT IN DATE, AND GIVEN UNDER DIFFERENT AUTHORITIES AND SURETIES, BUT THEY ARE OF DIFFERENT NATURES. THE FIRST IS LIMITED IN ITS DURATION TO A SPECIFIED PERIOD; THE SECOND IS UNLIMITED IN DURATION, AND DURING THE PLEASURE OF THE PRESIDENT. IF THE LATTER OPERATED MERELY AS A CONFIRMATION OF THE FORMER, THEN IT CONFIRMED ITS EXISTENCE ONLY DURING THE ORIGINAL PERIOD FIXED BY THE LAW. BUT SUCH AN EFFECT IS NOT PRETENDED, AND WOULD BE IRRECONCILABLE WITH THE TERMS AND INTENT OF THE COMMISSION. IT HAS BEEN SUGGESTED, THAT THE PRACTICE OF THE GOVERNMENT HAS BEEN, TO CONSIDER SUCH COMMISSIONS AS ONE CONTINUING COMMISSION. BUT WHATEVER WEIGHT THE PRACTICE OF THE GOVERNMENT MAY BE ENTITLED TO, IN CASES OF DOUBTFUL CONSTRUCTION, IT CAN HAVE NO INFLUENCE TO CHANGE THE CLEAR LANGUAGE OF THE LAW. IN SHORT, IF THE NOMINATION TO, AND APPROVAL BY THE SENATE, WAS A MERE CONFIRMATION, AND NOT EQUIVALENT TO A NEW APPOINTMENT, THERE WAS NO NECESSITY FOR THE SECOND COMMISSION; AND YET, THE ARGUMENT SUPPOSES, THAT IT COULD NOT BE DISPENSED WITH; FOR IF NO COMMISSION HAD BEEN ISSUED, THE FIRST, BY ITS OWN LIMITATION, WOULD HAVE EXPIRED.

THIS OPINION IS NO MORE DECISIVE OF THE QUESTION HERE CONSIDERED THAN IS THE ECKFORD CASE AS THE MATTER CONSIDERED WAS A RECESS APPOINTMENT WHICH THE STATUTE SPECIFICALLY AUTHORIZED TO BE MADE TO EXPIRE WITH THE END OF THE NEXT SESSION OF THE SENATE AND THE TERM OF THE INCUMBENT WAS INDEFINITE AND DURING THE PLEASURE OF THE PRESIDENT.

THE LAW PROVIDES FOR A TERM OF 4 YEARS FOR THE CHIEF OF INFANTRY. THERE IS NO QUESTION THAT MAJOR GENERAL FUQUA SERVED 4 YEARS AS CHIEF OF INFANTRY FROM MARCH 28, 1929, TO AND INCLUDING MARCH 27, 1933, THERE IS NO QUESTION HE COULD ONLY BE GIVEN A RECESS APPOINTMENT WHEN THE SENATE IS NOT IN SESSION, AND UNDER THE CONSTITUTION A RECESS APPOINTMENT IS LIMITED TO THE END OF THE NEXT FOLLOWING SESSION OF THE SENATE. BUT BECAUSE OF THE TEMPORARY CHARACTER OF THE RECESS APPOINTMENT, DOES IT NECESSARILY FOLLOW THAT CONGRESS IS IMPOTENT TO PROVIDE A TERM FOR AN OFFICE THE APPOINTMENT TO WHICH IS BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, AND THAT THE EFFORT TO SO LIMIT THE TERM OF AN OFFICE MUST ALWAYS BE UNDERSTOOD AS BEING SUBJECT TO INCREASE BY THE TIME AN APPOINTEE HAS SERVED UNDER A RECESS APPOINTMENT? SUCH A DOCTRINE WOULD PRESENT DIFFICULTIES WHERE THE TERM IS LIMITED TO A DEFINITE PERIOD AND THE APPOINTEE IS INELIGIBLE TO SUCCEED HIMSELF.

THE FOREGOING CITED CASES AND OPINIONS SEEM TO BE ALL THE FEDERAL PRECEDENTS, AT LEAST THOSE ONLY ARE CITED IN THE SUBMISSION AND NO ADDITIONAL CASES OR OPINIONS HAVE BEEN FOUND. THE RULE APPLICABLE IN STATE COURTS IS STATED IN 22 RULING CASE LAW, PAGE 551, AS FOLLOWS:

* * * WHERE THE LAW PRESCRIBES THE LENGTH OF THE TERM AND DESIGNATES THE PERSON IN WHOM IS VESTED THE POWER TO FILL A PUBLIC OFFICE BY APPOINTMENT, BUT NO DATE IS FIXED FOR THE BEGINNING OR ENDING OF THE TERM, IT HAS BEEN HELD THAT THE APPOINTIVE POWER HAS THE RIGHT TO FIX THE COMMENCEMENT OF THE TERM, AND WHEN THE SAME IS FIXED BY THE APPOINTMENT FIRST MADE ALL SUBSEQUENT TERMS OF OFFICE NECESSARILY HAVE REFERENCE TO SUCH INITIAL PERIOD, AND EACH TERM COMMENCES AT THE END OF THE PRECEDING TERM. SUPPORT OF THAT STATEMENT IS CITED STATE V. CORCORAN, 206 NO. 1, 103 S.W. 1044, 12 ANN.CAS. 1006. TO THE SAME EFFECT ARE STATE V. WILLIAMS, 222 MO. 268, 17 ANN.CAS. 1006, AND STATE V. STONESTREET, 99 MO. 361, 12 S.W. 895. A STATEMENT OF THE RULE APPLICABLE TO THE MATTER IS FORMULATED FROM DECIDED STATE CASES ALSO IN 46 CORPUS JURIS 966, AS FOLLOWS:

WHERE AN APPOINTMENT MADE BY THE EXECUTIVE IS SUBJECT TO CONFIRMATION BY A LEGISLATIVE BODY, AN APPOINTMENT BY THE EXECUTIVE ON THE EXPIRATION OF THE TERM OF THE INCUMBENT, DURING A RECESS OF THE LEGISLATIVE BODY, IS SUBJECT ONLY TO THE APPROVAL OF SUCH BODY AND, WHEN CONFIRMED, THE TERM BEGINS AT THE TIME OF THE APPOINTMENT.

CITED IN SUPPORT OF THIS STATEMENT OF THE LAW ARE THE FOLLOWING CASES:

PEO. V. ADDISON, 10 CAL. 1;

PEO. V. MIZNER, 7 COL. 519;

SHEPHERD V. HARALSON, 16 LA.ANN., 134;

DYER V. BAYNE, 54 MD. 87.

THERE BEING NO CLEARLY ESTABLISHED FEDERAL RULE APPLICABLE TO THE MATTER SUBMITTED, THE MATTER HAVING BEEN ADJUDICATED BY STATE COURTS UNIFORMLY TO LIMIT THE TERM TO THE STATUTORY PERIOD COMMENCING WITH THE DATE STATED BY THE APPOINTING POWER, IT WOULD SEEM APPROPRIATE THAT THAT RULE SHOULD BE FOLLOWED IN FEDERAL MATTERS UNTIL THE FEDERAL COURTS SHALL HAVE INDICATED A CONTRARY VIEW OF THE MATTER; ESPECIALLY SO SINCE THE PRESIDENT'S ACTION IN MAKING THE RECESS APPOINTMENT, IN MAKING THE NOMINATION TO THE SENATE, AND IN ISSUING THE PERMANENT APPOINTMENT CONFORMED TO THIS VIEW OF THE LAW. ACCORDINGLY, I AM OF THE OPINION THAT MAJOR GENERAL FUQUA'S TERM OF OFFICE EXPIRED MARCH 27, 1933, AND THAT HE IS NOT ENTITLED TO THE PAY AND ALLOWANCES APPLICABLE TO THE CHIEF OF INFANTRY AFTER THAT DATE. UNDERSTAND THAT NO APPOINTMENT OF HIS SUCCESSOR HAS BEEN MADE. THE VOUCHER AND DOCUMENTS SUBMITTED WILL BE RETAINED IN THE FILES OF THIS OFFICE.