It is my opinion that Section 204 supersedes Section 26 (d) of the Act of February 23, 1931, supra, in so far as that section authorizes the President to continue persons in the service of the United States. This view is confirmed by the testimony of Mr. Roop, then Director of the Bureau of the Budget and author of the first proviso of Section 204, given at the hearings held by the Senate on the bill which became the Economy Act (Senate Hearings, page 75). It appears that Mr. Wheeler became eligible for retirement on August 6, 1934, under the provisions of Section 26 (n), Act of February 23, 1931, supra (U. S. C., Title 22, Sec. 21 (n)). Section 1 of the Act of April 23, 1930, ch. 209, 46 Stat. 253, is as follows: "That hereafter retirement authorized by law of Federal personnel of whatever class, civil, military, naval, judicial, legislative, or otherwise, and for whatever cause retired, shall take effect on the 1st day of the month following the month in which said retirement would otherwise be effective, and said 1st day of the month for retirements hereafter made shall be for all purposes in lieu of such date for retirement as may now be authorized; except that the rate of active or retired pay or allowance shall be computed as of the date retirement would have occurred if this Act had not been enacted." Under the provisions of the above-quoted statute, Mr. Wheeler does not reach the age prescribed for automatic separation from the service until September 1, 1934. The President is, therefore, authorized to issue the proposed order. In view of the conclusion reached, the revised draft recites Section 204 of the Economy Act of June 30, 1932, supra, instead of Section 26 (n) of the act of February 23, 1931, supra, as authority for the proposed order. The other changes made in the original draft relate merely to form. The revised draft of the proposed order has my approval as to form and legality. Respectfully, J. CRAWFORD BIGGS, To the SECRETARY OF STATE. SELECTION OF PERSONNEL IN BUREAU OF THE CENSUS IN CONNECTION WITH PENDING AGRICULTURAL CENSUS The President has the power under section 1753 of the Revised Statutes and section 2 of the Civil Service Act of January 16, 1883, to authorize the establishment of a special reemployment list for temporary employment in the Bureau of the Census in connection with the pending agricultural census. (See Executive Order No. 6838 of September 1, 1934.) DEPARTMENT OF JUSTICE, August 28, 1934. SIR: Pursuant to Executive Order No. 6247 of August 10, 1933, there is transmitted herewith a revised draft of a proposed Executive order submitted by the Acting Director of the Budget under date of August 27, 1934, authorizing the establishment of a special reemployment list for temporary employment in the Bureau of the Census in connection. with the pending Agricultural Census required by Section 16 of the Act of June 18, 1929, c. 28, 46 Stat. 21, 25 (U. S. C., Supp. VII, Title 13, Sec. 216). The effect of the proposed order is to authorize the Civil Service Commission to give to those whose names are on the special reemployment list priority in certification for appointment to temporary positions in the Bureau of the Census. The President is empowered to issue the proposed order under Section 1753 of the Revised Statutes, and Section 2 of the Civil Service Act of January 16, 1883. Section 1753 authorizes the President to prescribe such regulations for the admission of persons into the Civil Service of the United States as may best promote the efficiency thereof. The Civil Service Act authorizes the President to prescribe rules for the admission of persons into the Civil Service of the United States which "as nearly as the conditions of good administration will warrant ", shall provide for competitive examinations, apportionment of appointments among the several states and territories and the District of Columbia upon the basis of population, etc. By section 2 of the act, the President is authorized to make exceptions to such rules. The proposed order will be an exception to the Civil Service Rules. Precedents for the issuance of the order are the Executive Orders of November 29, 1918 and April 30, 1919 [Nos. 3011 and 3083], issued by President Wilson; of January 28, 1927 and February 18, 1927 [Nos. 4589 and 4577], issued by President Coolidge, and the Executive Order of September 20, 1932 [No. 5924], issued by President Hoover, establishing reemployment registers. The changes made in the original draft do not alter the sense of the proposed order, the revised draft of which has my approval as to form and legality. Respectfully, J. CRAWFORD BIGGS. To the SECRETARY OF STATE. Acting Attorney General. WITHHOLDING THE ISSUANCE OF PATENTS TO THE NORTHERN PACIFIC RAILWAY COMPANY FOR CERTAIN LANDS The Act of June 25, 1929, chapter 41, 46 Stat. 41, requires the Secretary of the Interior to withhold the issuance of patents to the Northern Pacific Railway Co. for lands selected by it in lieu of lands within Mount Rainier National Park pending termination of the litigation authorized and directed by this act. DEPARTMENT OF JUSTICE, August 29, 1934. SIR: I have the honor to refer to your letter of August 22, requesting my opinion whether the Act of June 25, 1929, c. 41, 46 Stat. 41, requires the Secretary of the Interior to withhold the issuance of patents to the Northern Pacific Railway Company for "lieu lands" selected under the provisions of the Act of March 2, 1899, c. 377, 30 Stat. 993. Under the Act of July 2, 1864, c. 217, 13 Stat. 365, and the Joint Resolution of May 31, 1870, 16 Stat. 378, the Northern Pacific Railroad Company, predecessor of the Northern Pacific Railway Company, was granted certain lands. The Act of March 2, 1899, authorized the railroad to surrender to the United States so much of its land grant as lay within the newly created Mt. Rainier National Park and to select in lieu thereof lands located elsewhere. The lands within the Park were surrendered, but the selection of other lands has not been completed. Subsequently, the railroad claimed that its grants had been deficient in acreage and that it was entitled to select "indemnity lands" within national forests, and, on the other hand, the United States contended that the railroad had forfeited its right to some lands for breach of conditions subsequent. Congress, after investigation, passed the Act of June 25, 1929, which reads, in part, as follows: "SEC. 5. The Attorney General is hereby authorized and directed forthwith to institute and prosecute such suit, or suits, as may, in his judgment, be required to remove the cloud cast upon the title to lands belonging to the United States as a result of the claim of said companies, and to have all said controversies and disputes respecting the operation and effect of said grants, and actions taken under them, judicially determined, and a full accounting had between the United States and said companies, and a determination made of the extent, if any, to which the said companies, or either of them, may be entitled to have patented to them additional lands of the United States in satisfaction of said grants, and as to whether either of the said companies is lawfully entitled to all or any part of the lands within the indemnity limits for which patents have not issued, and the extent to which the United States may be entitled to recover lands wrongfully patented or certified. In the judicial proceedings contemplated by this Act there shall be presented, and the court or courts shall consider, make findings relating to, and determine to what extent the terms, conditions, and covenants, expressed or implied, in said granting Acts have been performed by the United States, and by the Northern Pacific Railroad Company, or its successors, including the legal effect of the foreclosure of any and all mortgages which said Northern Pacific Railroad Company claims to have placed on said granted lands by virtue of authority conferred in the said resolution of May 31, 1870, and the extent to which said proceedings and foreclosures meet the requirements of said resolution with respect to the disposition of said granted lands, and relative to what lands, if any, have been wrongfully or erroneously patented or certified to said companies, or either of them, as the result of fraud, mistake of law or fact, or through legislative or administrative misapprehension as to the proper construction of said grants or Acts supplemental or relating thereto, or otherwise, and the United States and the Northern Pacific Railroad Company, or the Northern Pacific Railway Company, or any other proper person, shall be entitled to have heard and determined by the court all questions of law and fact, and all other claims and matters which may be germane to a full and complete adjudication of the respective rights of the United States and said companies, or their successors in interest under said Act of July 2, 1864, and said joint resolution of May 31, 1870, and in other Acts or resolutions supplemental thereto, and all other questions of law and fact presented to the joint congressional committee appointed under authority of the joint resolution of Congress of June 5, 1924 (Forty-third Statutes, page 461), notwithstanding that such matters may not be specifically mentioned in this enactment. "SEC. 9. That the Secretary of the Interior is hereby directed to withhold his approval of the adjustment of the Northern Pacific land grants under the Act of July 2, 1864, and the joint resolution of May 31, 1870, and other Acts relating thereto; and he is also hereby directed to withhold the issuance of any further patents and muniments of title under said Act and the said resolution, or any legislative enactments supplemental thereto, or connected therewith, until the suit or suits contemplated by this Act shall have been finally determined: Provided, That this Act shall not prevent the adjudication of any claims arising under the public land laws where the claimants are not seeking title through the grants to the Northern Pacific Railroad Company, or its successors, or any Acts in modification thereof or supplemental thereto." [46 Stat. 44] [Italics supplied.] The suit thus directed was duly instituted and has not yet been concluded. The question depends upon whether the words of the Act of June 25, 1929, directing the withholding of further patents under the Act of June 2, 1864, the Joint Resolution of May 31, 1870, and "legislative enactments supplemental thereto, or connected therewith," include the Act of March 2, 1899, as "supplemental to" or "connected with" the earlier Act and Resolution. That the words literally include the 1899 Act is hardly open to question; and, under such circumstances, the result being neither unduly harsh nor absurd, there is ordinarily no occasion for going beyond the language of the statute. |