Cong., 2d sess.). The fact that the Congress in that act gave to the Secretary of the Interior a part of the authority which the Attorney General had held to be lacking is persuasive evidence that it intended to withhold the part not therein granted and to adopt the opinion of the Attorney General as stating the rule which should prevail except as modified by subsequent enactments; and this conclusion receives added support from the fact that the Congress has since amended or supplemented the Leasing Act on several occasions1 but without extending its scope beyond that which had been attributed to it. United States v. G. Falk & Brother, 204 U. S. 143, 150, 152; United States v. Jackson, 280 U. S. 183, 193, 196; United States v. Farrar, 281 U. S. 624, 634; Burnet v. Thompson Oil & Gas Co., 283 U. S. 301, 307.

For the reasons hereinbefore indicated it is my opinion that the Mineral Leasing Act of February 25, 1920, does not authorize leases with respect to lands acquired by the War Department in the course of its rivers and harbors improvement program. This conclusion, of course, is not as broad as the question submitted, but it seems preferable that I should confine my answer to the specific case in which the question has arisen.

Respectfully,

ROBERT H. JACKSON.

POLITICAL ACTIVITY BY GOVERNMENT EMPLOYEES Federal employees who violate the provisions of section 9 of the Hatch Act are required to be removed from office and there is no discretionary authority to invoke with respect to Civil Service employees the lesser penalties prescribed by the civil service rules. State and local employees who violate the provisions of section 12 of the Hatch Act are not required to be removed from office if the Civil Service Commission determines that the violation does not justify removal.

The Hatch Act permits public expression of opinion on political subjects and candidates provided it does not amount to taking an active part in political management or in political campaigns.

1 Acts of April 30, 1926, c. 197, 44 Stat. 373; February 7, 1927, c. 66, 44 Stat. 1057; February 25, 1928, c. 104, 45 Stat. 148; May 21, 1930, c. 307, 46 Stat. 373; July 3, 1930, c. 854, 46 Stat. 1007; March 4, 1931, c. 506, 46 Stat. 1523; August 21, 1935, c. 599, 49 Stat. 674, 678.

The PRESIDENT.

JANUARY 8, 1941.

MY DEAR MR. PRESIDENT: I have the honor to refer to your memorandum of September 21, 1940, transmitting the request of the Civil Service Commission for my opinion on the following questions which have arisen under the act of August 2, 1939, c. 410, 53 Stat. 1147, as amended by the act of July 19, 1940, c. 640, 54 Stat. 767, generally known as the Hatch Act.

"1. Under existing law may the Civil Service Commission under authority of the civil service rules invoke penalties of less than removal from office for activities which are violations of both the civil service rules and the law of August 2, 1939, as amended?

"2. When an activity of an officer or employee of a State or local agency subject to the terms of section 12 (a) of the act of August 2, 1939, as amended, is found to constitute a violation of the law within the definition of section 15 of such act, has the Civil Service Commission authority to determine whether or not such violation warrants removal of the officer or employee by whom it was committed from his office or employment?

"3. Under the definition of taking 'any active part in political management or in political campaigns' as supplied by section 15 of the act of August 2, 1939, as amended, are all employees subject to the act, including Federal classified employees, Federal nonclassified employees, and certain State and local employees, restricted to a private expression of opinion on political subjects and candidates?"

The pertinent provisions of the act of August 2, 1939, as amended, are as follows:

"SEC. 9. (a) It shall be unlawful for any person employed in the executive branch of the Federal Government, or any agency or department thereof, to use his official authority or influence for the purpose of interfering with an election or affecting the result thereof. No officer or employee in the executive branch of the Federal Government, or any agency or department thereof, shall take any active part in political management or in political campaigns. All such persons shall retain the right to vote as they may choose and to

express their opinions on all political subjects and candidates. * * *

"(b) Any person violating the provisions of this section shall be immediately removed from the position or office held by him, and thereafter no part of the funds appropriated by any act of Congress for such position or office shall be used to pay the compensation of such person.

"SEC. 10. The provisions of this act shall be in addition to and not in substitution for any other provision of law. "SEC. 15. The provisions of this act which prohibit persons to whom such provisions apply from taking any active part in political management or in political campaigns shall be deemed to prohibit the same activities on the part of such persons as the United States Civil Service Commission has heretofore determined are at the time this section takes effect prohibited on the part of employees in the classified civil service of the United States by the provisions of the civil service rules prohibiting such employees from taking any active part in political management or in political campaigns."

Sections 14 and 18 of the act make certain changes in section 9, above, but they are not material to the questions now being considered.

*

Pertinent provisions of the civil service rules, which were in force at the time section 15 of the Hatch Act took effect, are as follows: RULE I. "* Persons who by the provisions of these rules are in the competitive classified service, while retaining the right to vote as they please and to express privately their opinions on all political subjects, shall take no active part in political management or in political campaigns."

RULE XV. "Legal appointment necessary to compensation. For the proper supervision and enforcement of its functions, the Commission shall, if it finds that any person has been appointed to or is holding any position, whether by original appointment, promotion, assignment, transfer, or reinstatement, in violation of the Civil Service Act or of the rules promulgated in accordance therewith, or in violation of any executive order or any regulations of the Commission, or that any employee subject to such act, rules,

orders, or regulations is taking active part in political management or political campaigns, after notice to the person affected and opportunity for explanation, certify the facts to the proper appointing officer with specific recommendation for discipline or dismissal; and such appointing officer shall carry out the recommendation. In the event of any continued violation for ten days after such recommendation, the Commission shall certify the facts to the proper disbursing and auditing officers, and such officers shall not pay or allow the salary or wages of such person thereafter accruing."

I

Rule I of the civil service rules prohibits persons in the competitive classified service from taking active part in political management or in political campaigns, and Rule XV (as amended June 24, 1938, 3 F. R. 1519, 1525) authorizes the imposition of penalties of either discipline or dismissal for violations of the rules.

Except in the instance hereinafter discussed in answer to question 3, the Hatch Act, through sections 9 (a) and 15, prohibits on the part of all employees of the executive branch of the Federal Government the same activities which at the time section 15 took effect were prohibited by the civil service rules prohibiting civil service employees from taking any active part in political management or in political campaigns. Section 9 (b) of the act provides that any person violating the provisions of section 9 (a) shall be immediately removed from the position or office held by him. Removal from position or office for violation of the provisions of section 9 (a) is clearly mandatory, unless there are other provisions of the statute requiring a different conclusion.

Since section 10 of the Hatch Act provides that the statute shall be in addition to and not in substitution for existing law, the question is whether the provisions of the civil service rules permitting the imposition of penalties of less than removal with respect to employees in the competitive classified service may be considered as remaining in effect. This would result, as the Civil Service Commission points out, in one form of punishment under the statute and in an

entirely different form of punishment under the rules for the same misconduct.

Although section 10 of the Hatch Act declares that its provisions are in addition to and not in substitution for any other provision of law, yet if it be found that the provisions of the act are in conflict with the civil service rules so that the statute and the rules cannot stand together, the statute, since it is the latest expression of the Congress on the subject, must control. It seems clear that in expressly providing in section 9 of the Hatch Act for the removal of executive employees as a penalty for violating the provisions of the section, the Congress did not also intend by the somewhat ambiguous provisions of section 10 of the same act to adopt a different form of punishment which would permit civil service employees to escape with less severe penalties than those required to be imposed upon non-civil service employees. In restating the law then in effect as regards civil service employees and making the new law and the punishment of removal for violations thereof applicable alike to both civil service employees and noncivil service employees, the Congress has indicated an intention that all such persons subject to the statute shall be treated uniformly. I have no doubt, therefore, that the provisions of section 9 (b) of the Hatch Act, requiring removal of employees for violating the provisions of section 9 (a), are controlling. See 39 Op. A. G. 462.

Accordingly, it is my opinion in answer to the first question of the Civil Service Commission that where an employee has been found guilty of activities which are violations of both the civil service rules and section 9 of the Hatch Act, as amended, such employee is required to be removed from his position or office, and that penalties of less than removal may not be invoked.

II

With respect to the second question relating to the form of punishment to be prescribed in the case of violations of the Hatch Act on the part of State and local employees, section 12 (a) of the statute provides in part:

"No officer or employee of any State or local agency whose