The character of the service authorized by the proposed order is indicated by the following excerpt from the enclosed memorandum of August 21, 1934, submitted to this Department by the Surgeon General of the United States:

66* * * Much of the activity of the county health units would be concerned with service to the poor ordinarily rendered by physicians. Such service would include the maintenance of diagnostic clinics, the administration of vaccines for the prevention of diphtheria, typhoid fever and the like, medical advice to indigent pregnant mothers, medical advice on the care of infants and the medical examination of school children. The work would be directed largely to protection of the health of persons unable to pay for medical service, and in this way would relieve distress by preventing disease which would require medical care beyond the means of the poor. In this way, the Federal government would be relieved of at least a part of the much heavier expense of rendering actual medical service to the indigent sick."

It thus appears that the contemplated service will provide necessities of life to persons in need as a result of the emergency, and also that it will tend to prevent conditions requiring further direct relief. The rendition of such service is, therefore, within the scope of the Federal Emergency Relief Act.

The fact that a regular appropriation exists for the same purpose as that of the proposed allocation does not affect the validity of the contemplated action. The test is whether the allocation is made for a purpose within the Federal Emergency Relief Act.

The appropriation of $899,675,000 made by the Emergency Appropriation Act to carry out the provisions of the Federal Emergency Relief Act of 1933, and certain other Acts, is to be allocated for such purposes by the President. The authority of the President to allocate the funds necessarily implies that allocations may be made to any persons or agencies whom he may, in his discretion, designate. Hence, it follows that the President is authorized to select the Secretary of the Treasury as an agent to administer relief funds appropriated by the Emergency Appropriation

Act. It is my opinion, therefore, that the President is authorized to make the proposed allocation.

The Acting Director of the Bureau of the Budget objects to those provisions of the order which authorize the Secretary of the Treasury to appoint and fix the compensation of officers and employees without regard to the Civil Service laws and the Classification Act of 1923, as amended. [46 Stat. 1003.] Since the appropriation in question is to be allocated in the discretion of the President for carrying out the purposes of the Federal Emergency Relief Act, etc., the President is fully empowered to confer such authority upon the Secretary of the Treasury.

The draft submitted by the Acting Director of the Bureau of the Budget has been revised so as to indicate that the proposed allocation is to be used in carrying out the purposes of the Federal Emergency Relief Act of 1933, rather than the National Industrial Recovery Act. The other changes made relate to matters of form only. As revised, the proposed order has my approval as to form and legality. Respectfully,

To the PRESIDENT.

J. CRAWFORD BIGGS,
Acting Attorney General.

CONSTRUCTION OF SUBSISTENCE HOMESTEADS WITH FUNDS APPROPRIATED THEREFOR BY THE NATIONAL INDUSTRIAL RECOVERY ACT

The Federal Subsistence Homesteads Corporation is authorized to expend money appropriated under section 208 of the National Industrial Recovery Act for the construction of subsistence homesteads without the consent of the state in which such construction is to take place.

DEPARTMENT OF JUSTICE,
August 23, 1934.

SIR: I have the honor to comply with your request of August 20 for my opinion whether the Federal Subsistence Homesteads Corporation may expend money appropriated under Section 208 of the National Industrial Recovery Act for the construction of subsistence homesteads without the consent of the State wherein such construction is to take 144790°-37-vol. 38- -6

place, in view of the following provision contained in Section 355 R. S. (U. S. C., Title 40, Sec. 255):

"No public money shall be expended upon any site or land purchased by the United States for the purposes of erecting thereon any armory, arsenal, fort, fortification, navy-yard, custom-house, light-house, or other public building, of any kind whatever, until the written opinion of the Attorney-General shall be had in favor of the validity of the title, nor until the consent of the legislature of the State in which the land or site may be, to such purchase, has been given. The district attorneys of the United States, upon the application of the Attorney-General, shall furnish any assistance or information in their power in relation to the titles of the public property lying within their respective districts. And the Secretaries of the Departments, upon the application of the Attorney-General, shall procure any additional evidence of title which he may deem necessary, and which may not be in the possession of the officers of the Government, and the expense of procuring it shall be paid out of the appropriations made for the contingencies of the Departments respectively."

As pointed out by Attorney General Bates, (10 Op. 34, 38) consent by the States is not necessary to the acquisition of valid title by the United States, and is important only in the matter of jurisdiction because of the constitutional provision that the United States shall exercise exclusive jurisdiction " over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings."

66

This principle was recognized in the opinions to you of October 4, 1933 [37 Op. 288], and July 18, 1934, in which it was expressly concluded that Congress did not contemplate the assumption of exclusive jurisdiction over land purchased for resale to private persons as subsistence homesteads sites, yet, of course, Congress did authorize the purchase of such land and did authorize the expenditure of money thereon; and such authority, to the extent of any conflict, must prevail over earlier general requirements.

In the opinion to you of February 7, 1934 [37 Op. 437], concerning the acquisition of lands by the Public Works

* * *

Emergency Housing Corporation, it was concluded that Section 355 R. S. applied and required "the written opinion of the Attorney General in favor of the validity of the title;" and both your Department and mine have acted upon the assumption that such approval of title is required also in connection with lands purchased for the erection of subsistence homesteads, as indicated in the opinion of July 18, 1934. This, however, presents no conflict with the view that consent by the States is not required. Valid title is no less important because resale to private individuals is contemplated and there is no apparent reason for implying in the National Industrial Recovery Act an intent to depart from the provision of Section 355 R. S. relating to approval of title by the Attorney General, as distinguished from the separable provision relating to consent by the States.

Considering the foregoing, it is my opinion that the Federal Subsistence Homesteads Corporation is authorized to expend money appropriated under Section 208 of the National Industrial Recovery Act for the construction of subsistence homesteads without the consent of the State wherein such construction is to take place.

Respectfully,

J. CRAWFORD BIGGS,
Acting Attorney General.

To the SECRETARY OF THE INTERIOR.

CONSTRUCTION OF CIVIL SERVICE RULE IX, GOVERNING REINSTATEMENT

The Civil Service Commission is not authorized under Civil Service Rule IX, governing reinstatement, to apply the law of apportionment in the reinstatement of persons to the apportioned service but may disregard such law in such reinstatement.

An employee whose name is removed from the apportioned and nonapportioned registers upon his acceptance of an appointment to a non-apportioned position may be accorded a status of eligibility for reinstatement to a position in the apportioned service as of the date his vacated position was reached on the register.

DEPARTMENT OF JUSTICE,
August 25, 1934.

SIR: I have received a communication from your Assistant Secretary, Mr. Marvin H. McIntyre, enclosing a letter

from the Civil Service Commission submitting a question arising in the administration of Civil Service Rule IX, upon which the opinion of the Attorney General is requested.

The Commission's question is as follows:

Whether under the existing Civil Service Rule IX governing reinstatement, the Civil Service Commission has authority to apply the law of apportionment, in any case of proposed reinstatement to the apportioned service, when the person proposed for such reinstatement had formerly served in the apportioned service, or under Opinion of the Attorney General of June 10, 1932 [37 Op. 15], could be regarded as having a status for transfer or original appointment at some time to the apportioned service, and was otherwise eligible under the specific limitations of such reinstatement rule.

This question is divided into two parts. The first part relates to persons who have formerly served in the apportioned service. The second part relates to persons who have never served in the apportioned service.

The Civil Service Commission was established by the Act of January 16, 1883, ch. 27, 22 Stat. 403, 404. Section 2 of that act provides in part:

“That it shall be the duty of said commissioners: FIRST, To aid the President, as he may request, in preparing suitable rules for carrying this act into effect, * *

"SECOND. And among other things, said rules shall provide and declare, as nearly as the conditions of good administration will warrant, as follows:

"Third, appointments to the public service aforesaid in the departments at Washington shall be apportioned among the several States and Territories and the District of Columbia upon the basis of population as ascertained at the last preceding census. Every application for an examination shall contain, among other things, a statement, under oath, setting forth his or her actual bona fide residence at the time of making the application, as well as how long he or she has been resident of such place.