Evening star. [volume] (Washington, D.C.) 1854-1972, 1930-08-10
HOOVER TELLS ARMY AND NAVY
TO END AIR SERVICE DISPUTE!

Accordingly. the presence on the statute
books of the enactment above quoted
occasions a serious doubt as to whether
Congress can have intended thereby to
Mace restrictions upon important
onerations of the naval service to the
Exclusion of the Presidents power and,
n 60 whether in attempting to do this
II has acted within the scope OF its
constitutional authority. The ques-
ttons thus arising are not academic or
hypothetical, but, as you may readily
nerceive. are Of present moment in
the administration of the Navy, 1t being
of vital Importance that the Secretary
of the Navy shall be fully informed
concerning the extent of any limita-
tions which there may be upon his au-
thority and duty in the procurement
of material and the training of per-
sonnet over which he exercises control
AZ the representative Of the President.
AS the Attorney General Is express
" vested by law with authority to de-
termine the conStitutionality OF statutes
as well as to construe their language
for the guidance OF the heads of the
several departments, am :Inpelled to
submit the foregoing questions fer your
opinion, to the enc that this depart
n1ent may not only obtain an au-
thoritative Interpretation of the Nw,
hut. furthermore, if it has been mis-
taken in It's views as hereinbefore eX-
pressed. that it may promptly take such
action as shall be found necessary and
proper to conform to the law so long
as it may continue in force.
"As required by the rule of your de-
partment, there Is Enclosed herewith
an opinion of the acting Judge advo-
cate general of the Navy with respect
to the questions submitted.
UUorU Responsibility.
(sienedI. &C. F. ADAMS,
Secretary of the Navy"
MitcheIrs Neutral Reply.
office of the Attorney General.
Washington, d. c.,
January 16, 1880.
THE Secretary of the Navy.
MY Dear Mr.. Secretary-l have the
honor to refer to your letter of June 3,
1929, requesting my opinion as to
whether the Army appropriation act OF
June 5, 1920 (41 Stat. 954), or any other
statute is properly to be construed as
restricting naval control of aerial opera
lions over the sea from shore stations
established and maintained by the
Navy and if my answer should be in the
affirmative whether the statute which is
construed to have that effect Is to that
extent Unconstitutional as an unauthor-
lied restriction upon the power Of the
President as commander chief Of the
Army and Navy.
THE particular provision to which
you refer provides as follows:
Hereafter, the Army Air Service
shall control all aerial operations from
land bases, and naval aviation shall
have control of all aerial operations at
tached to a feet, including shore sta
tions whose maintenance is necessary
for operation connected with the feet,
for construction and experimentation
and for the training of personnel
mo other pertinent statutory pro-
vision has come to my attention except
the proviso inserted in the subsequent
Navy appropriation acts, that no part
of this appropriation shall be expended
for maintenance of more than six
heavier-than-air stations on the coasts
of the continental United States
With your letter there was inclosed
memorandum of the acting Judge
advocate Of the Navy stating his
opinion on the questions submitted
On June Is, 1929, the Secretary Of
War wrote me that he wished time to
study the subject matter before
tober 8, 1929, he submitted q memo
randum of the judge advocate general
OF the Army thereon. Thereafter, on
November IA, 1929, you sent me a memo
randum Of the Judge advocate of the
Navy replying to the views expressed
In the memorandum submitted by the
Secretary of War.
For several reasons I believe that
1t would not be expedient for me to
render an opinion.
Your question and the statute IT.
i,a
In discussing the meaning of the
statute, would find myself involved
in technical questions of naval and
military tactics. This Is shown to be
so by the memoranda from the judge
advocates general of the Army and
Navy. ] am not sure, either, that there
is any concrete question now arising
in your department. It does not appear
that the President. as Commander In
Chief, has directed any operations in
conf1ict with the provisions of the
statute, and while you may have gen.
eTal problems of naval operations to
consider, it is not made to appear that
you have available any appropriations
the method of expenditure of which
has been so left to your discretion that
the expenditure depends on the con-
struction placed upon this statute, or
that you are confronted with concrete
case for decision. This last suggestion
OF mine leads to more basic reason
for withholding an opinion, which is
that under present conditions no gen.
eral expressions from me as to the
meaning OF this statute or as to the
constitutional powers of the President
as Commander in Chief would settle
the real questions involved. Whatever
may be the powers of the President in
the direction of military and naval
operations, supplying material and men
for naval operations require money,
and Congress holds the purse strings.
In making appropriations for the Navy
Department, Congress may and does
define the purpose for which the funds
at least, the activities of the Navy are
controlled by the Congress.
Statements by Senator Bingham In
correspondence relating to the present
situation confirm the impression that
the real concrete question now await
ing decision is as to what appropriation
shall be made by the Congress for naval
air service. In making its decision on
that subject, the Congress will form its
own opinions about the respective func-
tions of the Army and the Navy in aerial
operations. My opinions are not bind
ing on Congress, and there is no reason
TO think that an opinion from the At
torney General on the construction of
general provision in the Army appro-
priation act of June 5, 1920. would have
any tendency to control the decision of
the present Congress as to what appro-
priations should be made for the Navy.
Congress has not tied its own hands by
the provision in the 1920 act, and 1t
may adopt a new principle. If any
point of order is made against an appro-
priation item because of the clause In
the 1920 act, the Congress will make its
own decision as to what the clause
means. 1t now has a joint committee
considering the whole problem.
There have long been statutes pro-
yidinp that the Attorney General shall