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

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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."

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

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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:

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“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.

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"Eighth,

And any necessary exceptions from said eight fundamental provisions of the rules shall be set forth in connection with such rules, and the reasons therefor shall be stated in the annual reports of the Commission."

It is to be noted that the above-quoted provisions of law require the members of the Commission to aid the President in preparing suitable rules for carrying the act into effect, and require, among other things, that said rules shall provide and declare "as nearly as the conditions of good administration will warrant", that appointments in the Departments at Washington shall be apportioned among the several states and territories and the District of Columbia upon the basis of population. It is to be further noted that the President is authorized to make exceptions to such rules. Although there is no express authority for Rule IX, it has always been regarded as being authorized under the President's power to make exceptions. Under this authority the President is authorized to except reinstatements from the application of the law of apportionment or to require the Commission to apply the law in certifying persons for reinstatement to the apportioned service. The precise question is whether the President has by Rule IX authorized the Commission to apply the law of apportionment.

Civil Service Rule IX provides:

"A person separated without delinquency or misconduct from a competitive position or from a position which he entered by transfer or promotion from a competitive position or to accept another appointment in the executive civil service may be reinstated upon certificate of the Commission subject to the following limitations:

"(a) Unless otherwise provided hereinafter, a person may be reinstated only to the department or independent Government establishment from which separated and upon requisition made within 1 year from the date of his separation. In its discretion the Commission may after absolute appointment allow reinstatement in any part of the classified service, and it may also authorize waiver of the 1-year limit herein prescribed, under the following time limitations: 2 years where service has been 2 years but less than 3

years; 3 years where service has been 3 years but less than 4 years; 4 years where service has been 4 years but less than 5 years; and without time limit where service has been 5 years or more: Provided, That the applicant for reinstatement who has been separated more than 5 years is otherwise eligible as set forth under the conditions of the Executive order of June 2, 1920: And provided further, That he can qualify under an appropriate noncompetitive examination.

"(b) A former classified employee entitled to military preference in appointment may be reinstated without time limit.

"(c) A former classified employee retired upon annuity under the act of May 22, 1920, by reason of total disability, who is eligible for reinstatement in his former department or office by reason of recovery and termination of annuity, shall also be eligible for reinstatement to an appropriate position in any part of the service, subject to the conditions. and limitations of the civil-service rules.

"(d) No person in any of the foregoing groups may be reinstated to a position requiring an examination different from that required in the position from which he was separated without passing an appropriate examination.

"(e) An employee involuntarily separated during or at the end of probation, without fault on his part, may be reinstated to serve a new probation in any part of the service, in any position for which he has qualified, or can qualify in an appropriate noncompetitive examination, subject to the other provisions of the civil-service rules."

It appears that with the exception of a short interval prior to 1903, during which the rule relating to reinstatement was in different phraseology, to 1931, almost the entire life of the Commission, the Commission has not regarded the rule relating to reinstatement as authorizing the Commission to apply the law of apportionment in the reinstatement of persons to the apportioned service. Without any change in the rule, the Commission, on March 20, 1931, by a majority vote (Commissioner Wales, the only lawyer member of the Commission, dissenting) approved the following Minute:

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