Consequently, it lies with the President to determine the manner in which the railroad shall be most successfully constructed. As an incident to such construction, the President, by his Executive order of April 10, 1915, has determined that compensation for injuries sustained in the course of employment shall be made to two classes of persons:

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"(a) Those directly in the service of the commission upon salary;

"(b) Those actually engaged in the work of construction in Alaska, by contract with the commission."

The latter class will, of course, include persons employed in the actual work of construction, either on salary, as day laborers, or on special contract work, for in either case they will be employed "by contract with the commission." The order appears to make no provision for persons who are employed by the commission otherwise than upon salary but not actually engaged in the work of construction in Alaska.

This order, in my opinion, was clearly within the range of the President's statutory authority. To hold otherwise would restrict unwarrantably that which Congress intended as a broad and untrammeled grant of power.

Risk of injury is a necessary incident to all employment. Under enlightened modern, social, and economic theory provision for compensation for all such injuries is a part of the duty of the State, either by State insurance or State-controlled employers' liability, since on broad grounds of policy it is for the interest of both employer and employee that the loss entailed by injury should not fall solely on the employee. Recognition of this policy is already to be found in governmental action at Panama, and in legislation enacted and pending in Congress, in the direction of employees' compensation.

The President may well deem it important to provide for humane, economic, and uniform conditions among persons in the Government service, whether working as salaried officers, day laborers, or under other contract. The system of compensation provided for by him in his Executive

order of April 10, 1915, is in accordance with such a view, and is, in my opinion, warranted by the authority conferred upon the President by the statute. This being so, the system being instituted by you was within your power, since it was within the limits prescribed by the Executive order of the President.

Respectfully,

T. W. GREGORY.

To the SECRETARY OF THE INTERIOR.

RETIREMENT OF ARMY AND NAVY OFFICERS SERVING ON THE ISTHMUS OF PANAMA.

Under the act of March 4, 1915 (38 Stat. 1190), providing for recognizing the services of certain officers of the Army, Navy, and Public Health Service for their services in connection with the construction of the Panama Canal, when an officer otherwise within the purview of the act applies for retirement he must be retired, and the President has no discretionary authority to postpone the date of retirement to such time as he may deem proper.

DEPARTMENT OF JUSTICE,

July 7, 1915.

SIR: I have the honor to acknowledge receipt of your letter of May 11, 1915, in which you request my opinion upon the construction of the act approved March 4, 1915, (38 Stat. 1190), entitled:

"An act to provide for recognizing the services of certain officers of the Army, Navy, and Public Health Service for their services in connection with the construction of the Panama Canal, to extend to certain of such officers the thanks of Congress, and for other purposes."

Section 6 of which provides:

"That at any time after the passage of this act any omcer of the Army or Navy to be benefited by the provisions of this act may, on his own application, be retired by the President at seventy-five per centum of the pay of the rank upon which he is retired."

My opinion is desired upon the following points:

(1) Does this act entitle an officer of the Army included within its terms to be retired immediately on his own application therefor? or;

(2) Has the President discretionary authority to postpone the data of retirement to such time as he may deem proper, but not later than required by other provisions of law for the retirement of officers of the Army?

The sections of the act, other than section 6, provide for the thanks of Congress to certain named officers; for advance in rank to the officers so named of from one to two grades; for advance in rank of one grade, upon retirement, of other officers who have had such service; for discretionary advance in rank of one grade to officers of the Public Health Service who have had such length of service; for advance in rank of one grade to officers who have had such service and have already been retired; and for other matters, not material here.

The question presented is whether the word "may," as used in section 6, quoted supra, gives an absolute right to retirement to the applying officer, regardless of other general provisions of the retirement laws, or whether it vests the President with discretionary power in the premises; in other words, whether the word "may," with relation to the duty of the President, is mandatory or permissive.

A review of previous Federal Statutes discloses the following practice of Congress in the use of the word "may" in connection with the subject of retirement of officers in the Army and Navy.

The early general retirement statute, with respect to commissioned officers of the Army (act of Aug. 3, 1861, 12 Stat. 287), provides (sec. 15):

"That any commissioned officer of the Army, or of the Marine Corps, who shall have served as such for forty consecutive years, may, upon his own application to the President of the United States, be placed upon the list of retired officers, with the pay and emoluments allowed by this act."

The act of July 15, 1870 (16 Stat. 315), which seems to have been the first act specifically vesting discretionary

power in the President in the matter of the retirement of officers, provided in sections 3 and 4, respectively:

"That the President be, and he is hereby, authorized, at his discretion, honorably to discharge from the service of the United States officers of the Army who may apply therefor on or before the first of January next; and such officers so discharged under the provisions of this act shall be entitled to receive, in addition to the pay and allowances due them at the date of their discharge, one year's pay and allowances.

"That the President be, and he is hereby, authorized, at his discretion, to place on the retired list of the Army, on their own application, any commissioned officers who have been thirty years in the service, and the officers who may be retired by virtue of this section shall be entitled to the same pay and emoluments as are now allowed, or may be hereafter allowed, to officers retired from active service."

The commissioners appointed to revise the statutes of the United States consolidated the provisions of the acts quoted above, and embodied the three sections, as shown by the side notes, into section 151, c. 2-" Of Retirement," Title XIV, "The Army "-(p. 615), as follows:

"When an officer has served forty consecutive years as a commissioned officer, he shall, if he makes application therefor to the President, be retired from active service and placed upon the retired list. When an officer has been thirty years in service as a commissioned officer, he may, upon his own application, in the discretion of the President, be so retired, and placed on the retired list."

An explanatory note follows this proposed section, in which the commissioners state:

"The words in italics (as a commissioned officer') are supplied as within the meaning of the act of 1870. The provision as to thirty years in this act is deemed not to supersede that of 1861 as to forty years. Although the language of the latter act is may be placed on the retired list,' it would seem that one act gives a right to retirement, while the other gives discretion to the President to retire on a shorter service."

This appears to have been the first use in retirement statutes of the word "may" coupled with the term "in the discretion of the President." The explanatory note clearly indicates that, in the opinion of the commissioners, that word, when employed as it was in section 15 of the first retirement act, i. e., in connection with length of service in the Army (40 years) meant "shall," and that when so used, unless accompanied by express words vesting discretion in the President, it was mandatory.

Evidently the word was used in the original act of 1861 for the purpose of granting a right or reward for long service in the Army (40 years), although the officer would not be entitled under other provisions of the act to retirement for physical disability incident to the service.

The same view must have been adopted by Durant in his redraft of the revision presented to Congress in 1873, since he made no change in the section, as presented by the commissioners. Congress must also have so understood and adopted it, as the section (with the exception of the words "as a commissioned officer" stricken out) was enacted by that body as section 1243, Revised Statutes, and is the law to-day.

Section 21 of the act of 1861 contains a provision with respect to the retirement of officers of the Navy similar to that of section 15 for officers of the Army. Section 21 was not materially changed by the commissioners or by Congress, and the original language found in section 15, and repeated in section 21, was substantially adopted in the incorporation of section 21 into the Revised Statutes as section 1443, viz:

"When any officer of the Navy has been forty years in the service of the United States he may be retired from active service by the President upon his own application."

Clearly, if the use of the word "may" in section 15 granted an absolute right to officers of the Army, the use of the same word in section 21 of the same statute, which is now existing law, in practically its original form, granted and grants the same absolute right to officers of the Navy.