B-37512, OCTOBER 22, 1943, 23 COMP. GEN. 301

B-37512, OCTOBER 22, 1943, 23 COMP. GEN. 301

OATHS OF OFFICE - ALIENS APPOINTED TO GOVERNMENT POSITIONS ALIENS APPOINTED AS PROFESSORS AND INSTRUCTORS AT THE UNITED STATES NAVAL ACADEMY UNDER THE AUTHORITY IN SECTION 205 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1944, TO EMPLOY NATIONALS OF THOSE COUNTRIES ALLIED WITH THE UNITED STATES IN THE PROSECUTION OF THE WAR, ARE NOT EXEMPT FROM THE REQUIREMENTS OF SECTION 1757, REVISED STATUTES, THAT PERSONS APPOINTED TO OFFICES OF HONOR OR PROFIT TAKE THE OATH PRESCRIBED THEREIN.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE NAVY, OCTOBER 22, 1943:

I HAVE YOUR LETTER OF OCTOBER 5, 1943, REF. JAG:J:HJM:AC, SO9 19 100, AS FOLLOWS:

THE ACT OF AUGUST 29, 1916, AS AMENDED (34 U.S.C. 1071), AUTHORIZES THE SECRETARY OF THE NAVY TO EMPLOY AT THE U.S. NAVAL ACADEMY PROFESSORS AND INSTRUCTORS FOR THE INSTRUCTION OF MIDSHIPMEN. HERETOFORE IT HAS BEEN REQUIRED THAT APPOINTEES BE CITIZENS OF THE UNITED STATES. THE BEST QUALIFIED APPLICANTS FOR APPOINTMENT AS INSTRUCTORS IN THE DEPARTMENT OF PHYSICAL TRAINING, PARTICULARLY FENCING MASTERS, AND ALSO IN THE DEPARTMENT OF FOREIGN LANGUAGES, ARE FREQUENTLY NOT CITIZENS OF THE UNITED STATES. THERE IS NO GENERAL PROVISION OF LAW PROHIBITING THE APPOINTMENT OF ALIENS TO POSITIONS AS PROFESSORS AND INSTRUCTORS AT THE NAVAL ACADEMY, BUT SECTION 205 OF THE INDEPENDENT OFFICES APPROPRIATION ACT, 1944 ( PUBLIC LAW 90-78TH CONGRESS), PREVENTS SUCH APPOINTMENTS EXCEPT IN CASES OF CITIZENS WHO (A) ARE PERSONS IN THE SERVICE OF THE UNITED STATES ON JUNE 26, 1943, WHO, BEING ELIGIBLE FOR CITIZENSHIP, HAD FILED DECLARATIONS OF INTENTION TO BECOME CITIZENS PRIOR TO THAT DATE OR (B) NATIONALS OF THOSE COUNTRIES ALLIED WITH THE UNITED STATES IN THE PROSECUTION OF THE WAR.

SECTION 1757, REVISED STATUTES, AS AMENDED (5 U.S.C. 16), PROVIDES A FORM OF OATH TO BE TAKEN BY ALL PERSONS APPOINTED TO ANY OFFICE OF HONOR OR PROFIT. IN VIEW OF THE FACT THAT CERTAIN ALIENS MAY NOW BE APPOINTED AS PROFESSORS AND INSTRUCTORS AT THE NAVAL ACADEMY AND THAT THE REQUIREMENT IN THE ABOVE-MENTIONED LAW FOR THE TAKING OF AN OATH MAY BE INAPPROPRIATE IN MANY CASES A DECISION IS REQUESTED AS TO WHETHER AN APPLICANT FOR APPOINTMENT TO THE POSITION OF PROFESSOR OR INSTRUCTOR AT THE NAVAL ACADEMY MUST TAKE THE OATH PROVIDED IN SECTION 1757, REVISED STATUTES, AS AMENDED, BEFORE QUALIFYING FOR APPOINTMENT.

SECTION 1757, REVISED STATUTES, AS AMENDED ( 5 U.S.C. 16), PROVIDES:

OATH OF OFFICE.

THE OATH TO BE TAKEN BY AN PERSON ELECTED OR APPOINTED TO ANY OFFICE OF HONOR OR PROFIT EITHER IN THE CIVIL, MILITARY, OR NAVAL SERVICE, EXCEPT THE PRESIDENT OF THE UNITED STATES SHALL BE AS FOLLOWS:" I A B, DO SOLEMNLY SWEAR (OR AFFIRM) THAT I WILL SUPPORT AND DEFEND THE CONSTITUTION OF THE UNITED STATES AGAINST ALL ENEMIES, FOREIGN AND DOMESTIC; THAT I WILL BEAR TRUE FAITH AND ALLEGIANCE TO THE SAME; THAT I TAKE THIS OBLIGATION FREELY, WITHOUT ANY MENTAL RESERVATION OR PURPOSE OF EVASION; AND THAT I WILL WELL AND FAITHFULLY DISCHARGE THE DUTIES OF THE OFFICE ON WHICH I AM ABOUT TO ENTER. SO HELP ME GOD.' THIS SECTION SHALL NOT AFFECT THE OATHS PRESCRIBED ON MAY, 13, 1884, IN RELATION TO THE PERFORMANCE OF DUTIES IN SPECIAL OR PARTICULAR SUBORDINATE OFFICES AND EMPLOYMENTS. ( R.S. SEC. 1757; MAY 13, 1848, CH. 46, SECS. 2, 3, 23 STAT. 22).

IN DECISION OF FEBRUARY 26, 1932, 11 COMP. GEN. 327, 330, INVOLVING ALIENS EMPLOYED IN THE FOREIGN AGRICULTURAL SERVICE, DEPARTMENT OF AGRICULTURE, IT WAS STATED:

THE REQUIREMENT OF SECTION 1757, SUPRA, IS MANDATORY AND ADMITS OF NO EXCEPTION UNLESS SPECIFICALLY AUTHORIZED BY STATUTE. THE PROVISIONS OF SECTION 1758, REVISED STATUTES, ARE PERMISSIBLE AND DO NOT LIMIT, OR CREATE ANY EXCEPTION TO, THE MANDATORY PROVISIONS OF THE PRECEDING SECTION. IN OTHER WORDS, THERE MAY BE, AND ARE, SITUATIONS IN WHICH THE APPOINTEES ARE REQUIRED TO TAKE THE OATH OF OFFICE UNDER SECTION 1757, REVISED STATUTES, BUT ARE NOT IN A POSITION TO EXECUTE IT BEFORE THE OFFICERS NAMED IN SECTION 1757, REVISED STATUTES. IN SUCH CASES THE REQUIRED OATH MAY BE TAKEN BEFORE ANY OFFICER AUTHORIZED TO ADMINISTER OATHS GENERALLY AT THE PLACE WHERE THE OATH IS TAKEN. THERE HAS NOT BEEN OVERLOOKED IN THIS CONNECTION THE OPINION OF THE ATTORNEY GENERAL RENDERED JANUARY 3, 1902, 23 OP. ATTY. GEN. 608, CONSTRUING SECTION 1756, REVISED STATUTES, NOTWITHSTANDING ITS REPEAL BY THE ACT OF MAY 13, 1884, 23 STAT. 22.

AS APPOINTMENTS UNDER SECTION 3 (A) OF THE ACT OF JUNE 5, 1930, SUPRA, ARE TO BE MADE BY THE HEAD OF THE DEPARTMENT, IT FOLLOWS THAT SUCH APPOINTEES ARE OFFICERS WITHIN THE PURVIEW OF SECTION 1757, REVISED STATUTES, AND THEY MUST, THEREFORE, TAKE THE OATH PRESCRIBED BY THAT SECTION. SEE 10 COMP. GEN. 394. SEE, ALSO 10 COMP. GEN. 544.

AS PROFESSORS AT THE NAVAL ACADEMY ARE APPOINTED BY THE SECRETARY OF THE NAVY, THEY PROPERLY ARE TO BE CONSIDERED AS BEING APPOINTED TO AN OFFICE OF HONOR OR PROFIT WITHIN THE MEANING OF SECTION 1757, REVISED STATUTES. SEE 6 COMP. GEN. 112, AND THE COURT DECISIONS THEREIN CITED. WHILE THE APPROPRIATION PROVISION UNDER CONSIDERATION SPECIFICALLY AUTHORIZES THE EMPLOYMENT OF NATIONALS OF THOSE COUNTRIES WHICH ARE ALLIED WITH THE UNITED STATES IN THE PROSECUTION OF THE WAR, NEITHER THAT STATUTE NOR ANY OTHER EXEMPTS THEM FROM THE REQUIREMENT TO TAKE THE OATH OF OFFICE PRESCRIBED BY SECTION 1757, REVISED STATUTES. CF. THE ACT OF APRIL 18, 1930, 46 STAT. 189, EXEMPTING FOREIGN COUNSEL EMPLOYED BY THE ATTORNEY GENERAL IN SPECIAL CASES FROM THE REQUIREMENT TO TAKE THE OATH OF OFFICE; ALSO, 5 U.S.C. 315.

ACCORDINGLY, YOUR QUESTION MUST BE, AND IS, ANSWERED IN THE AFFIRMATIVE.